High Court dismisses certiorari claim against planning permission, noting no reasonable possibility of impact on Natura 2000 sites.

[2025] IEHC 206

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000037]

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50, 50A AND 50B OF THE

PLANNING AND DEVELOPMENT ACT, 2000

BETWEEN

PADDY MASSEY

APPLICANT

AND

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL, MINISTER FOR HOUSING,

LOCAL GOVERNMENT AND HERITAGE

RESPONDENTS

AND

CURNS ENERGY LIMITED

NOTICE PARTY

(No. 2)

JUDGMENT of Humphreys J. delivered on Friday the 11th day of April 2025

1. Natura 2000 consists of a Europe-wide network of areas designated under directive

2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the

conservation of wild birds (the birds directive) and council directive 92/43/EEC of 21 May 1992 on

the conservation of natural habitats and of wild fauna and flora (the habitats directive). Special

protection areas (SPAs) are designated under the birds directive, and sites of Community interest/

special areas of conservation (SACs) under the habitats directive. EU law requires that appropriate

assessment (AA) of impacts of developments on such sites be carried out by reference to the

conservation objectives (habitats directive, art. 6(3)) applicable to such sites. The directive does

not, however, involve a textual link between conservation objectives and the initial process of AA

screening – the idea being that certain sites (in any given case, the vast majority of European sites

in Ireland and all European sites in all other countries) can be screened out (for example, because

they are so far away with no plausible intermediate pathway) on the basis of whether there could

be any effects at all, irrespective of the details of any conservation objectives or measures. The

applicant here tries to embellish the text of the directive by proposing an outsize extension of the

stringent requirements for assessment into the very different and vastly less exacting process of the

initial screening process. While that concoction has an obvious negative answer, it is in principle is

a question that could be referred to Luxembourg. But there is a separate question as to whether

such a reference should be on the basis of declaratory relief only or on the basis of potential

certiorari, given that the uncontested evidence in this particular case shows a lack of any reasonable

possibility of potential impact on any European site that could possibly warrant quashing this

particular permission.

Judgment history

2. In Massey v. An Bord Pleanála & Ors. (No. 1) [2021] IEHC 783 (Unreported, High Court,

21st December 2021), the applicant challenged the board’s decision that the present planning

application should be given strategic infrastructure development (SID) status. That would normally

be an impermissibly premature action but in fact the opposing parties were happy to have it decided,

so it was – adversely to the applicant. No order was made as to the costs unnecessarily imposed

on the respondent and notice party. It will be a matter for the opposing parties in due course as to

whether that has any implications in terms of discount or otherwise as to any costs that they may

be required to pay at the conclusion of these proceedings

3. The applicant now comes again challenging the final decision, which was to grant permission.

Geographical context

4. These proceedings concern a challenge to the decision of the Board (ABP-309121-21,

https://www.pleanala.ie/en-ie/case/309121), dated 8th November 2023, under s. 37G of the

Planning and Development Act 2000 (the 2000 Act) to grant planning permission to the notice party

for development of a wind farm and associated infrastructure on the Cork/Waterford border. Details

are set out at https://www.lyrenacarrigawindfarm.com/.

5. The development is to include 17 wind turbines within two clusters, 11 of which (turbines

T1-T11) are to be located in Co. Waterford within the eastern cluster and 6 of which (turbines T12-

T17) are to be located in Co. Cork within the western cluster, an underground collector cable

connection of c. 3.3 km in length, a substation with a loop-in connection into the Knockraha-

Woodhouse 110 kV line via two 40 m overhead lines and a lithium ion battery storage facility co-

located with the substation.

6. The felling of c. 50 hectares of forestry on the site is to be replaced by the planting of a

similar sized area on a site near Ballymote in Co. Sligo.

7. The nearest European Site is the Blackwater River (Cork/Waterford) SAC [002170] located

adjacent to the north-eastern boundary of the site. The development is 9.9 km from the Blackwater

Callows SPA (p. 216 of inspector’s report) which was designated by S.I. No. 191 of 2012 - European

Communities (Conservation of Wild Birds (Blackwater Callows Special Protection Area 004094))

Regulations 2012, which includes the Whooper Swan (Cygnus cygnus) as a qualifying interest.

Facts

8. As noted above, Blackwater Callows SPA was designated in 2012.

9. An SID determination letter issued to Innogy Renewables Ireland Limited on 28th May 2020.

10. Relying on that, on 8th January 2021, the notice party, Curns Energy Limited, made an

application for development consent under s. 37E of the 2000 Act for the wind farm development.

The application documentation contained a suite of documents, including, inter alia, an

environmental impact assessment report (EIAR), an AA screening report and a Natura impact

statement (NIS).

11. In March 2021, the Chief Executive of Waterford City and County Council made a report on

the wind farm development under s. 37E(4). Similarly, in March 2021, the Chief Executive of Cork

Council also made a report on the wind farm development.

12. Submissions were received from six prescribed bodies including Inland Fisheries Ireland, the

Development Applications Unit (formerly NPWS) and Irish Water.

13. A total of 679 observations were submitted by members of the public, including the

applicant.

14. On 26th January 2022, generic conservation objectives were adopted for Blackwater Callows

SPA and other sites.

15. On or about 8th April 2022, the board sought further information from Curns – a response

was provided by Curns on 11th October 2022, which included a series of appendices comprising

expert reports.

16. Following correspondence from the board, Curns published notices advising of the

submission of the further information and the date by which submissions were to be made to the

board. Submissions were received from three prescribed bodies and 196 observations were received

from members of the public. No further submissions from the planning authorities were received.

17. On 8th May 2023, the board decided that no oral hearing was to be held.

18. Curns was invited to make a submission in response to the observations made by the public

in response to the developer’s further information – this response was received by the board on 23rd

June 2023.

19. In August 2023, the board’s inspector made her report recommending that planning

permission be granted for the wind farm development, subject to conditions.

20. The board met to consider the file on 19th October 2023, and prepared a direction

recommending that planning permission be granted.

21. By order dated 8th November 2023, the board granted planning permission for the impugned

development.

22. On 24th March 2024, site-specific objectives and conservation measures were put in place

for Blackwater Callows SPA.

Procedural history

23. The proceedings were issued on 11th January 2024.

24. The application for leave to apply for judicial review was opened on 22nd January 2024 and

adjourned to 29th January 2024, whereupon leave was granted by Farrell J. for all reliefs and on all

grounds with liberty to file an amended statement of grounds.

25. The applicant filed an amended statement of grounds on 1st February 2024.

26. The board filed its opposition papers on 25th July 2024.

27. The state respondents filed their opposition papers on 3rd October 2024.

28. The notice party filed its opposition papers including three affidavits on 10th October 2024.

29. The applicant filed replying affidavits on 2nd December 2024, 3rd December 2024 and 20th

December 2024.

30. On 27th January 2025, counsel for the applicant informed the court that the applicant was

not proceeding against the state respondents, with respect to relief D3 and core ground 6.

31. Arising from the preliminary reference made to the Court of Justice by the Court of Appeal

(Case C-27/25), the issue of modularisation of certain core grounds was raised in court on 27th

January 2025, but was not determined by the court at that point.

32. In correspondence dated 7th February 2024, it was confirmed that the Minister will consent

to the following declaration:

“A Declaration that the Second and or Third and Fourth Respondents failed to fulfil their

obligations under Articles 3, 4(1) and 4(2) Birds Directive and Article 6 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’), as implemented by SI 477 of 2011 and in particular Article

26 thereof, by failing, as of the date that the decision of the Board under challenge was

made, to have in place the necessary site specific conservation objectives and conservation

measures in the Blackwater Callows Special Protection Area.”

33. When the matter was called over on 3rd March 2025, I clarified that no order for

modularisation had been, or for the time being would be, made.

34. The matter was heard on 4th and 5th March 2025. As oral submissions were concluding,

the applicant drew my attention to the recent Supreme Court determination in Friends of Ardee Bog

v. An Bord Pleanála & Ors. [2025] IESCDET 29 (Dunne, Woulfe and Hogan JJ., 21st February 2025).

In the light of that, I invited further written submissions on specific questions relating to core ground

7. The questions were circulated to the parties (and also to the parties in Punchestown Area

Community Group v. An Bord Pleanála [2024 431 JR] where a similar point arose, although that

case compromised prior to the finalisation of the present matter, but not before submissions were

delivered to the court).

35. The matter was adjourned to 25th March 2025, at which point my attention was drawn to

Friends of Ardee Bog v. An Bord Pleanála & Ors. [2025] IESC 13 (Unreported, Supreme Court, Hogan

J., Dunne and Woulfe JJ. concurring, 25th March 2025). In the light of that, matters were put back

again to Monday 31st March 2025 for further submissions. On the latter date submissions were

completed and judgment was reserved. Having considered the matter further I then invited the

parties back on Monday 7th April 2025 to clarify the options before the court in terms of the

appropriate reliefs in the event of a reference and received further helpful submissions in that regard.

Relief sought

36. The reliefs sought in the amended statement of grounds are as follows (the applicant is not

proceeding with relief 3):

“1. An Order of Certiorari by way of application for judicial review to quash a decision

(’the impugned decision’) of the First Respondent (‘the Board’) of on or about 8 November

2023 (file 309121), pursuant to section 37G of the Planning and Development Act 2000, as

amended, to grant planning permission to the Notice Party for development of a wind farm

and associated infrastructure including 17 wind turbines within two clusters, 11 of which

(Turbines T1-T11) are to be located in Co. Waterford within the eastern cluster and 6 of

which (Turbines T12-T17) are to be located in Co. Cork within the western cluster, an

underground collector cable connection of c.3.3km in length, a substation with a loop-in

connection into the Knockraha – Woodhouse 110kV line via two 40m of overhead line and a

lithium ion battery storage facility co-located with the substation.

2. Such Declaration(s) of the legal rights and/or legal position of the applicant and/or

respondents and/or persons similarly situated as the Court considers appropriate.

3. A Declaration that the impugned decision is invalid and contrary to the Aarhus

Convention as transposed into EU law because the Second and Third Respondents failed to

properly transpose Article 6(4) of the EIA Directive into domestic law with the result that

the public concerned, including the Applicant in these proceedings, was excluded from

participation in the pre-application stage of the Strategic Infrastructure Development

consent process and was denied early and effective opportunities to participate in the

environmental decision-making procedures referred to in Article 2(2) and was denied his

entitlement to express comments and opinions when all options were open to the competent

authority or authorities before the decision on the request for development consent was

taken.

4. An Order declaring that the Second and Third and Fourth Respondents have failed

to fulfil their obligations under Articles 3, 4(1) and 4(2) Birds Directive and Article 6 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’) as implemented by SI 477 of 2011 and in

particular Article 26 thereof by failing to establish the necessary site specific conservation

objectives and conservation measures in the Blackwater Callows SPA involving, if need be,

appropriate management plans specifically designed for the site or integrated into other

development plans, and appropriate statutory, administrative or contractual measures which

correspond to the ecological requirements of the site’s qualifying interests the Whooper

Swan, the Wigeon, the Teal, the Black-Tailed Godwit and other ‘Wetland and Waterbirds’

that use the SPA and the impugned decision is invalid as a result because the Board could

not conduct an appropriate assessment and therefore had no jurisdiction to make the

decision.

5. An Order providing for the costs of the application pursuant to Art. 9(4) of the Aarhus

Convention and as transposed into Section 50B of the Planning and Development Act, 2000,

as amended and or Section 3 of the Environmental (Miscellaneous Provisions) Act 2011, as

amended with respect of the costs of this application.

6. Further and other orders including interim orders.

7. Liberty to apply for a Stay if necessary.”

Grounds of challenge

37. The core grounds of challenge are as follows (the applicant indicated in the statement of

case that he is not proceeding with ground 6, and subsequently by correspondence withdrew core

grounds 3 and 5 also):

“PART 1 - CORE GROUNDS

Domestic Law Grounds

1. The impugned decision is invalid in that it contravenes s. 37A(1) and s. 37E(1) and

(2) of the Planning and Development Act as amended, because the Board accepted a

planning application from the Notice Party under s. 37E for a windfarm development

specified in the Seventh Schedule without first ensuring that the condition in s.37A(2) had

been complied with, and the Board had not first engaged in consultations with the Notice

Party and had not served on the Notice Party a notice in writing under s. 37B stating that,

in the opinion of the Board, the proposed development would, if carried out, meet the

required criteria for designation as a Strategic Infrastructure Development and had not

carried the test in S.37A(2)(a) to (c ) for the proposed development and had not kept in

writing a record of any consultations under s.37B in relation to the proposed development

contrary to s. 37C(3), and the Board erred in law, contrary to s.37E(2) by failing to refuse

to deal with the Notice Party’s application when it knew or ought to have known that or

ought to have considered if the application for permission was inadequate or incomplete,

having regard in particular to Article 210 of the Planning and Development Regulations 2001,

as amended and or Article 213 and or Article 214 and the failure to conduct consultations

under s.37B, and the Board acted irrationally and contrary to law by proceeding with the

impugned process even though the public had alerted it at a very early stage to the fact that

the Notice Party had never been a prospective applicant within the meaning of s.37B and

the Board knew or ought to have known that it had not served any notice under 37B(4) or

carried out the assessment required by S.37B(3) to determine if the project was a SID and

eligible to bypass local planning application processes to the Cork and Waterford planning

authorities and their public participation procedures. Further particulars are set out in Part

2 below.

EU Law Grounds

2. The impugned decision is invalid in that it contravenes Article 6(3) of Council

Directive 92/43/EEC (‘the Habitats Directive’) as transposed by sections 177U (1), (2), (4)

and (5) of the Planning and Development Act, 2000, as amended and SI 477 of 2011, in

that the First Respondent failed to make a proper screening for Appropriate Assessment

prior to the granting of consent to assess, in view of best scientific knowledge, if the

proposed development, individually or in combination with another plan or project is likely

to have a significant effect on the Waterford Callows SPA and failed to determine properly

or at all if it could or could not be excluded, on the basis of objective information, that the

proposed development, individually or in combination with other plans or projects, would

have a significant effect on the Waterford Callows SPA and the conservation of the Whooper

Swan, a conservation interest of that site, and failed to conduct any proper EIA in relation

to swans, contrary to the EIA Directive. Further particulars are set out in Part 2 below.

3. The impugned decision is invalid in that it contravenes Articles 7(3) and Article

4(1)(a)(i)-(iii) of Council Directive 2000/60 as transposed by SI 722 of 2003 as amended

and SI 99 of 2023 as interpreted under EU law, because the Board failed to verify properly

or at all, during the planning approval procedure whether the project at issue is liable to

have an adverse impact on the fulfilment of the obligations laid down in that article to ensure

the necessary protection for the Glendine River as the source of the drinking water supply

for the town of Youghal. Further particulars are set out in Part 2 below.

4. The impugned decision is invalid in that it contravenes Article 2(1) of the EIA

Directive as implemented by Part X of the Planning and Development Act 2000 and Part 10

and Part 18 Planning and Development Regulations 2001 as amended, because the Board

failed to ensure that, before development consent was given, the whole project was made

subject to the requirement for development consent and an assessment with regard to its

direct and indirect significant effects on the environment, including the replanting of

compensatory forestry lands on a 49.9 hectare site in Ballymote, Co. Sligo; and acted

contrary to Article 3(1) by failing to ensure that the environmental impact assessment

identified, described and assessed in an appropriate manner, the direct and indirect

significant effects of the project on factors including biodiversity, land, soil. air, water,

climate and the landscape and the interaction between these factors for the whole project

including the replanting lands, and acted contrary to Article 4(3) by adopting the Inspector’s

screening out of any requirement for EIA of the cumulative impacts and or direct and indirect

significant effects of the afforestation of the Ballymote lands due to the distance of 280

kilometres between the windfarm and the compensatory forestry lands in Sligo; and acted

contrary to Annex IV by failing to have proper regard to any indirect, secondary, cumulative,

transboundary, short-term, medium- term and long-term, permanent and temporary,

positive and negative effects of the project and gave no proper reasons for failing to assess

the impacts of the afforestation at Ballymote and contrary to s.172 of the Planning and

Development Act, 2000 as amended being the transposing provision for the above articles

of the EIA Directive into the planning legislation. Further particulars are set out in Part 2

below

5. The impugned decision was made contrary to Articles 6(3), 6(5) and 11 of the EIA

Directive as transposed by s146 of the Planning and Development Act, 2000, as amended,

because the Board failed to ensure that relevant information including submissions made by

members of the public, was made available to the public within reasonable timeframes and

through a central portal and in failing to do so other than by charging a fee of €2,416.60 for

a full copy of the file of material considered by the Board and denied the Applicant access to

a review process that was fair, equitable, timely and not prohibitively expensive. Further

particulars are set out in Part 2 below

Transposition Ground

6. Further and in the alternative, the impugned decision is invalid and contrary to the

Aarhus Convention and EU law because the Second and Third Respondents failed to properly

transpose Article 6(4) of the EIA Directive into domestic law with the result that the public

concerned, including the Applicant in these proceedings, was excluded from participation in

the pre-application stage of the Strategic Infrastructure Development consent process and

was denied early and effective opportunities to participate in the environmental decision-

making procedures referred to in Article 2(2) and was denied his entitlement to express

comments and opinions when all options were open to the competent authority or authorities

before the decision on the request for development consent was taken. Further particulars

are set out in Part 2 below

Validity Ground

7. The Second and Third and Fourth Respondents have failed to fulfil their obligations

under Articles 3, 4(1) and 4(2) of Directive 2009/147/EC of the European Parliament and of

the Council of 30 November 2009 on the conservation of wild birds (‘the Birds Directive’)

and Article 6 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’) as implemented by SI 477 of

2011 and in particular Article 26 thereof by failing to establish the necessary site specific

conservation objectives and conservation measures in the Blackwater Callows SPA involving,

if need be, appropriate management plans specifically designed for the site or integrated

into other development plans, and appropriate statutory, administrative or contractual

measures which correspond to the ecological requirements of the site’s qualifying interests

the Whooper Swan, the Wigeon, the Teal, the Black-Tailed Godwit and other ‘Wetland and

Waterbirds’ that use the SPA and the impugned decision is invalid as a result because the

Board could not conduct an appropriate assessment and therefore had no jurisdiction to

make the decision. Further particulars are set out in Part 2 below.”

Domestic law issues

Core ground 1 – relationship with pre-application stage

38. Core ground 1 is:

“1. The impugned decision is invalid in that it contravenes s. 37A(1) and s. 37E(1) and

(2) of the Planning and Development Act as amended, because the Board accepted a

planning application from the Notice Party under s. 37E for a windfarm development

specified in the Seventh Schedule without first ensuring that the condition in s.37A(2) had

been complied with, and the Board had not first engaged in consultations with the Notice

Party and had not served on the Notice Party a notice in writing under s. 37B stating that,

in the opinion of the Board, the proposed development would, if carried out, meet the

required criteria for designation as a Strategic Infrastructure Development and had not

carried the test in S.37A(2)(a) to (c ) for the proposed development and had not kept in

writing a record of any consultations under s.37B in relation to the proposed development

contrary to s. 37C(3), and the Board erred in law, contrary to s.37E(2) by failing to refuse

to deal with the Notice Party’s application when it knew or ought to have known that or

ought to have considered if the application for permission was inadequate or incomplete,

having regard in particular to Article 210 of the Planning and Development Regulations 2001,

as amended and or Article 213 and or Article 214 and the failure to conduct consultations

under s.37B, and the Board acted irrationally and contrary to law by proceeding with the

impugned process even though the public had alerted it at a very early stage to the fact that

the Notice Party had never been a prospective applicant within the meaning of s.37B and

the Board knew or ought to have known that it had not served any notice under 37B(4) or

carried out the assessment required by S.37B(3) to determine if the project was a SID and

eligible to bypass local planning application processes to the Cork and Waterford planning

authorities and their public participation procedures. Further particulars are set out in Part

2 below.”

39. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant’s Position –

13. In summary, the Board ought to have invalidated the SID application because it was

not made by a planning applicant who had engaged in the mandatory pre-application

process, and it was made for a substantially different development in substantially different

locations to what was proposed by a different developer at pre-application stage.

14. The impugned strategic Infrastructure Development (‘SID’) process was preceded

by a pre-application consultation stage (Board file 301740) which ended on 15 May 2020.

The then prospective applicant was Innogy Renewables Ireland, to whom a SID

determination letter was issued. When it came to making the SID planning application on 8

January 2021, a different entity, Curns Energy Limited, a subsidiary of Innogy, was the

planning applicant for a substantially relocated 17 turbine windfarm described as being in a

location involving only 2 of the previous 8 townlands and extending into 13 new townlands

which were not previously described as being the subject of any prior application under s.

37B.

Board’s Position –

15. Core Ground 1 is grounded on alleged differences as between the pre-application

process and the application for permission made in respect of the final layout and location

of the proposed development. However, it is not necessary at the stage of the jurisdictional

determination (i.e. the pre-application stage) for final details and final design to be

presented, as long as it is clear that what is involved would at least be at the level that would

reach the SID threshold, which was undoubtedly the case here. The pre application decision

is not legally a predetermination of anything to be decided by the Board pursuant to s.37G

of the 2000 Act. The preliminary decision taken by the Board under s.37A is for the purpose

of deciding to which decision-maker the prospective applicant should submit the application

for planning permission. Beyond sending the case down the SID route, the s. 37A decision

is not binding as to decision-making in later stages of the process. The relevant case law,

with which the Applicant does not engage with, is clear in respect of the foregoing and, when

same is applied to the circumstances of this case, serves to dispose of this point as against

the Applicant – see Massey v. An Bord Pleanála [2021] IEHC 783 at §20-§21; Callaghan v.

An Bord Pleanála [2018] IESC 39, [2021] 1 I.R. 81, [2018] 2 I.L.R.M. 373 at 376; and

Carrownagowan Concern Group v. An Bord Pleanála (No.2) [2024] IEHC 300 at §106 - §124.

16. In the present case, it was clear that what was involved would reach the threshold

for SID; in particular, with respect to total output, the 50 MW threshold for SID would be

exceeded (see e.g., §3.1, §5.2, §9.1.1 of the Inspector’s Report dated 15th April 2020 from

the pre-application process ABP-301740-18, and see also §3.5.1, §3.20.1, §11.0 of the

Inspector’s Report on the subject application for permission). The development described

in an application made under s.37E of the 2000 Act does not have to coincide in every

respect with the brief description of that development previously given at the pre planning

application stage. As part of the pre-application consultation process, the Inspector (ABP-

301740-18) and the Board (Board Direction BD-005753-20 / ABP-301740 18) both

concluded that the proposal of a windfarm development, comprising 17 no. turbines, at a

site located along the Cork/Waterford border was SID. The application for SID permission

at issue was for a windfarm development, comprising 17 no. turbines, at a site located along

the Cork/Waterford border, and is substantially the same as the development discussed at

the pre-application stage. Insofar as there are differences as regards the final layout and

location of the proposed development in relation to which permission was sought, these

were, for example, explained in the EIAR submitted with the application for permission. The

rhetoric in the Applicant’s submissions that the application for permission here ‘proposed a

substantially different development to what had been proposed at pre-application stage’

comprises inaccurate assertion and hyperbole.

17. As regards the Applicant’s complaint regarding the identity of the applicant for

permission, the Applicant has refused to accept the appropriate concession from the Board

of declaratory relief in relation to same and instead maintains pursuit of certiorari of the

Board’s Decision on that point, which relief is clearly disproportionate and should therefore

be refused, for a number of reasons: (i). the close connection between the entities

concerned; (ii) the fact that the same planning agent (MKO) was involved at the pre

application stage and application stage for the prospective applicant and applicant for

permission and where the evidence demonstrates that the person who ultimately applied for

permission has had the benefit of the consultations and advice given by the Board during

the pre-application procedure; (iii) the evident substantive consistency with the objectives

sought to be achieved under the SID provisions of the 2000 Act by the consultation and

advice provisions in s.37B(3) of the 2000 Act; (iv) that there was no prejudice to the position

of the Applicant or anyone else as a result of the differences as between the ‘proposed

applicant’ and applicant for permission; (v) that the Applicant does not dispute that the

proposed development to which the Board’s Decision relates constitutes SID and there is no

question of the pre-application process being undermined and/or rendered ineffective in any

respect; (vi) that the Applicant has not established or demonstrated that the application for

permission at issue in these proceedings was frivolous or vexatious, or made by persons

with no realistic prospect of carrying out the development and there is no dispute or issue

joined by the Applicant as regards the sufficiency of the Notice Party’s legal interest in

respect of the site the subject of the application; and (vii) where the Applicant and other

third parties would not be prejudiced in terms of enforcement of the terms of the permission

granted. The Court should, in the exercise of its discretion, not grant certiorari of in respect

of the Board’s Decision on this ground. Decisions should not be quashed over errors that

make no difference, see e.g., Carrownagowan Concern Group v. An Bord Pleanála (No.3)

[2024] IEHC 549 at §52; Carrownagowan Concern Group [2025] IESCDET 9 at §20 and §21;

Waltham Abbey v An Bord Pleanála [2022] 2 ILRM 417 at §64.

Notice Party Position -

18. The Applicant fails to frame this ground by reference to the purpose of the statutory

pre-application process and the subsequent application process – which is principally

concerned with ensuring the application was and remains SID – which is the case here. The

tenuous nature of Applicant’s complaints is illustrated by the fact that the Applicant does not

actually advance any argument that the jurisdictional requirements provided for under s.37A

were not met at any stage in the process (pre-application or application). Thus, insofar as

the Applicant asserts that the development applied for is different to that considered at the

pre-application stage, this contention is artificial/of no significance given that it is accepted

by the Applicant that the development meets the statutory jurisdictional criteria for

admission and consideration under the SID process. The Applicants have ignored the

statutory provision that the pre-application stage does not prejudice the application and

have also ignored specific and relevant case law on the matter.

19. Regarding the Applicant’s complaints in relation to the different entities as between

the ‘prospective applicant’ at pre-application stage and the ‘applicant’ at application stage

same do not warrant any relief – particularly noting: the legislative scheme has not been

undermined in any way (the project remained SID and the applicant had the benefit of the

pre-application process); the close relationship between the prospective applicant and

applicant; the fact that it was the same project team involved at all stages; the lack of

prejudice to the Applicant.

20. Whilst it is denied that there is any basis for relief under this Core Ground, in the

exercise of its discretionary jurisdiction, the Court ought to refuse relief in circumstances

where the complaint is entirely technical, would serve no purpose, and no prejudice has

been suffered by the Applicant, the public or any other person.”

40. As regards the complaint that the application should have been invalidated due to

being made by a different applicant, the critical fact is as pleaded by the notice party at para.

18 of its statement of opposition:

“Curns is a subsidiary of RWE Renewables Ireland Limited, which was previously called

Innogy Renewables Ireland Limited.”

41. This created a bit of an issue in the sense that the applicant for permission should be the

same as the applicant at pre-consultation stage: Cork Harbour Alliance for a Safe Environment v.

An Bord Pleanála [2021] IEHC 203, [2021] 3 JIC 1904 (Unreported, High Court, Barniville J., 19th

March 2021).

42. However, as in Cork Harbour, there is no particular inevitability to the grant of certiorari as

a result of the error. Barniville J. granted a declaration instead: Cork Harbour Alliance for a Safe

Environment v. An Bord Pleanála [2019] IEHC 85 (Unreported, High Court, 15th February 2019).

The board does not object to a similar declaration here.

43. The basic reason why this point fails as a basis for certiorari is set out by the board in

submissions at para. 9, citing Carrownagowan Concern Group v. An Bord Pleanála (No. 3) [2024]

IEHC 549 (Unreported, High Court, 23rd September 2024) at §52, the non-precedential

determination in Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 (Charleton,

Collins and Donnelly JJ., 27th January 2025) at §20 and §21 (which cites Case C-72/12 Altrip) and

Waltham Abbey v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417 (Hogan J.):

“[D]ecisions should not be quashed over errors that make no difference”.

44. This is consistent with the views of Owens J. in Pembroke Road Association v. An Bord

Pleanála [2021] IEHC 403 (Unreported, High Court, 16th June 2021).

45. Insofar as this is properly a matter for discretion, the board elaborates (para. 7) as follows:

“certiorari on this point, ... having regard to the factual situation in this case, would be

clearly disproportionate (which is a legitimate basis for reusing relief – see e.g. Eco Advocacy

[2025] IEHC 15 at §147-§156; Toole v. The Minister for Housing, Local Government and

Heritage [2024] IEHC 610 at §163; McCallig v. An Bord Pleanála & Ors [2013] IEHC 60 at

§121; Waltham Abbey/ Pembroke Road Association v. An Bord Pleanála and Others [2022]

IESC 30 at §53; Murtagh v. An Bord Pleanála [2023] IEHC 345 at §§74-75), for the following

reasons:

(i). the close connection between the entities concerned (as noted by the Inspector at

§1.1-§1.2) - Innogy Renewables Ireland Ltd entered into pre-application consultations with

the Board under s.37B of the 2000 Act and the Notice Party applicant for permission is a

joint venture between RWE Renewables Ireland Ltd. (previously Innogy Renewables Ireland

Ltd.), a subsidiary of the RWE Energy Group, and Highfield Energy Ltd,

(ii). the fact that the same planning agent (MKO) was involved at the pre-application

stage and application stage for the prospective applicant and applicant for permission and

where the evidence demonstrates that the person who ultimately applied for permission has

had the benefit of the consultations and advice given by the Board during the pre-application

procedure,

(iii). the evident substantive consistency with the objectives sought to be achieved under

the SID provisions of the 2000 Act by the consultation and advice provisions in s.37B(3) of

the 2000 Act,

(iv). that there was no prejudice to the position of the Applicant or anyone else as a result

of the differences as between the ‘proposed applicant’ and applicant for permission,

(v). that the Applicant does not dispute that the proposed development to which the

Board’s Decision relates constitutes SID and there is no question of the pre-application

process being undermined and/or rendered ineffective in any respect,

(vi). that the Applicant has not established or demonstrated that the application for

permission at issue in these proceedings was frivolous or vexatious, or made by persons

with no realistic prospect of carrying out the development and there is no dispute or issue

joined by the Applicant as regards the sufficiency of the Notice Party’s legal interest in

respect of the site the subject of the application (see by way of broad analogy, the case law

regarding the requirements for landowner consent to make an application - Heather Hill

[2019] IEHC 450 at §185, Heather Hill [2022] IEHC 146 at §65; Walsh v. An Bord Pleanála

[2021] IEHC 523 at §11, §14, §22, §42, §59 and what Holland J. referred to as the

‘purposive, pragmatic and realistic approach to the owners’ consent requirement’ which, it

is submitted, is an approach that commends itself in the present case also),

(vii). where the Applicant and other third parties would not be prejudiced in terms of

enforcement of the terms of the permission granted.”

46. The applicant says this is not an error, it is a contravention. The applicant characterises this

as a “conscious decision” because the inspector says there was no legal impediment to the

application. That doesn’t follow – and the applicant never even asked the board how the failure to

take on board Cork Harbour came about so one can’t assume it involved intentional disregard of

law. Presumably that was just by mistake – there was no motive or logic to ignore jurisprudence

deliberately in this case. Also one can interpret the concept of lack of impediment as meaning lack

of jurisdictional impediment. While the board doesn’t argue that, the notice party does, as it is

entitled to do – Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4 (Unreported,

Supreme Court, 22nd February 2024) per Donnelly J. (O'Donnell C.J., Woulfe, Hogan and Collins JJ.

concurring). As it happens I agree with the notice party rather than the board – yes it is an error

or even a contravention but not a jurisdictional contravention. It is a directory rather than a

mandatory rule, so the inspector was correct that there was no (jurisdictional) legal impediment to

the application.

47. Ultimately whether an application is made by a subsidiary or a parent company, a majority

owner or the company so owned, or when the corporate structures were put in place, or who the

directors are and whether they overlap, is all indoor management stuff that makes no difference to

anybody as far as the planning application is concerned. The applicant was left flat-footed in

attempting to explain why such a rule would have to be jurisdictional - other than by reference to

abstract self-inflating academic concepts like the rule of law and the need for compliance with the

statute. But the rule of law is adequately vindicated by a declaration. Cork Harbour is about textual

interpretation, not about vindicating any obvious policy-based interest. Indeed there isn’t any

obvious policy interest served by the rule that the applicants should be the same. The basic legal

principle in a market economy is the alienability of property rights, and that principle is undermined

by excessive rigidity about shifting ownership of rights or identify of applicants in relation to a

prospective project. Legal policy leans in favour of considering the requirement as directory and

non-jurisdictional, or at least, if I am wrong about that, in favour of exercising discretion in favour

of declaratory rather than imperative relief.

48. Ultimately I agree with Owens J. that the issue of the identity of the applicant for permission

doesn’t go to jurisdiction. That was an issue conceded in Cork Harbour rather than decided. So the

developer is correct that the identity issue is not an impediment to the permission but it is non-

compliance with what is in effect a directory provision.

49. Strictly therefore we don’t need to get to discretion because certiorari doesn’t arise but if it

does, declaratory relief is appropriate rather than certiorari as the latter would be disproportionate

– this is a technicality that makes no difference to anything significant and certainly makes no

tangible difference to any rights of the applicant.

50. All of this much-ado-about-nothing illustrates, yet again, that the concept of “jurisdictional”

error needs to be kept within very tight boundaries, and much of the rhetoric around the concept

probably needs to be decommissioned as it subtracts from clarity and adds nothing but rigidity and

inflexibility and unfounded demands for certiorari for no particularly pressing reason.

51. As regards the complaint that the application should have been invalidated due to

relating to a substantially different development, the basic reason why this point fails is set

out by the board in submissions (para. 3) as follows:

“it is not necessary at the stage of the jurisdictional determination (i.e. the pre-application

stage) for final details and final design to be presented, as long as it is clear that what is

involved would at least be at the level that would reach the SID threshold, which was

undoubtedly the case here. The pre-application decision is not legally a predetermination of

anything to be decided by the Board pursuant to s.37G of the 2000 Act. The preliminary

decision taken by the Board under s.37A is for the purpose of deciding to which decision-

maker the prospective applicant should submit the application for planning permission.

Beyond sending the case down the SID route, the s. 37A decision is not binding as to

decision-making in later stages of the process.”

52. The problem for the applicant is that this point has already been decided, and the applicant

makes no attempt to engage with the adverse authority – see Callaghan v. An Bord Pleanála [2018]

IESC 39, [2021] 1 I.R. 81, [2018] 2 I.L.R.M. 373 at 376 (Clarke C.J.); Massey v. An Bord Pleanála

[2021] IEHC 783 (Unreported, High Court, 21st December 2021) at §20-§21; and Carrownagowan

Concern Group v. An Bord Pleanála (No. 2) [2024] IEHC 300 (Unreported, High Court, 20th May

2024) at §106 - §124. As pointed out by the board, an interpretation that prevented changes in the

light of the environmental assessment process would be non-goal-congruent and would discourage

the refinement of a scheme in an environmentally friendly way as envisaged by EU law. It is inherent

in the EU assessment process that a development can and should, where appropriate, change as

part of that process. It would undermine EU law to concoct a rule designed to defeat the procedure

whereby an application can evolve during the process having regard, inter alia, to assessment

material required by the habitats directive and directive 2011/92/EU of the European Parliament and

of the Council of 13 December 2011 on the assessment of the effects of certain public and private

projects on the environment (the EIA directive).

53. The applicant obviously couldn’t point to anything specific in the 2000 Act that made an

application invalid if it differed from the “proposed development” to be assessed by virtue of

information provided under s. 37C(1). In fairness to him, the applicant didn’t shy away from the

far-fetched and impracticable consequences of that and submitted that the law came down to the

proposition that anything more than a de minimis departure from the pre-application development

would be invalid. That is an obviously absurd and pointless restriction and wholly undermines the

entire purpose of EU law assessments which is to work towards improvement of the proposal.

54. This would be a major restriction on the SID procedure which it is implausible to suggest in

the absence of an express provision. While one can see an argument that a radically different

application that is wholly unrecognisable from the proposed development at pre-application stage,

for example by relating to a different type of development, would be an abuse of the procedure, this

is not such an application. Sure, many, if not most, of the turbines are in different locations but

that doesn’t make this application radically different, still less unrecognisable, to a reasonable

objective observer – not as seen by an objecting judicial review applicant, an impossible standard.

55. The applicant argues that the two “errors” should be considered together but the second

point isn’t an error.

Form of the declaration – core ground 1

56. In terms of the form of the conceded declaration, the applicant grandly wanted a declaration

as to what the law is. The alternative would be to declare what the board did incorrectly here. The

applicant says that a declaration that applies only in this case would “generate confusion and

uncertainty”. That isn’t the case because the judgment can dispel any such uncertainty. The

declaration is being made because of the law as set out in Cork Harbour, insofar as that related to

decided rather than conceded points, and not because of any fact-specific point here. But all other

things being equal, the starting point is to frame declarations no more widely than needs be. There

isn’t a need for a wider one here.

57. A first draft of a declaration based on the one in Cork Harbour would be along the following

lines:

“A declaration that the application for permission for development under section 37E of the

Planning and Development Act 2000 should have been made by the ‘prospective applicant’

under sections 37A to 37D.”

58. The changes from Cork Harbour that seem appropriate are:

(i) the declaration should be limited to the facts of what happened here rather than a

general pronouncement about law; and

(ii) Cork Harbour was actually dealing with remittal whereas here it is a mere possibility

only, so there is no need to provide for amendment specifically.

59. A declaration here would be made against the board only rather than the other opposing

parties.

60. As regards costs under this heading, the declaration was conceded in the statement of

opposition, so in the normal course costs would arise up to 26th July 2024 when that was served

with a possible provision for a single mention only subsequently. However the applicant didn’t accept

that offer so the board raised the possibility of set-off of the costs of the trial of the issue. So the

best solution is to put off the costs for now until the stage of discussing the final order, with an order

reserving the relevant portions of the costs as set out below.

EU law issues

Core ground 2 – Whooper Swan

61. Core ground 2 is:

“2. The impugned decision is invalid in that it contravenes Article 6(3) of Council

Directive 92/43/EEC (‘the Habitats Directive’) as transposed by sections 177U (1), (2), (4)

and (5) of the Planning and Development Act, 2000, as amended and SI 477 of 2011, in

that the First Respondent failed to make a proper screening for Appropriate Assessment

prior to the granting of consent to assess, in view of best scientific knowledge, if the

proposed development, individually or in combination with another plan or project is likely

to have a significant effect on the Waterford Callows SPA and failed to determine properly

or at all if it could or could not be excluded, on the basis of objective information, that the

proposed development, individually or in combination with other plans or projects, would

have a significant effect on the Waterford Callows SPA and the conservation of the Whooper

Swan, a conservation interest of that site, and failed to conduct any proper EIA in relation

to swans, contrary to the EIA Directive. Further particulars are set out in Part 2 below.”

62. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant’ Position –

21. The Court of Appeal has made a preliminary reference to the Court of Justice on this

matter (Case C-27/25). This Core Ground has been modularised to Module 2.

22. In summary, the Board breached the Habitats Directive and EIA Directive due to the

failure to properly consider the impacts of the proposed development on the Whooper Swan

species, a conservation interest of the Waterford Callows SPA. This ground is also related

to Relief D4 which seeks a declaration that the impugned decision is invalid due to the failure

of the Second, Third and Fourth Respondents to prepare conservation objectives and

measures for the Whooper Swan in the Blackwater Callows SPA because the Board could not

conduct an appropriate assessment and therefore had no jurisdiction to make the decision.

23. During an inadequate survey, swans were recorded in flight over the site. This is a

different set of facts to Power v An Bord Pleanála [2024] IEHC 108 and Eco Advocacy v An

Bord Pleanála [2025] IEHC 15, where the Court’s findings in each case relied on the absence

of any record of the protected birds on the site. The surveys were based on the SNH

Guidelines 2016 (‘SNH 2016’) rather than SNH 2017 contrary to what is recommended by

SNH itself. Even with the limited bird surveying undertaken (which did not include the

required amount of early morning and late evening and night time surveying) two swans

were recorded in flight over the site of the proposed Lyrenacarriga windfarm.

Board’s Position –

24. Core Ground 2 does not overlap with Core Ground 7 as the Applicant asserts – Core

Ground 2 does not involve/ is not directed at a jurisdictional complaint in relation to AA

Screening; in the context of the Habitats Directive. it alleges inadequate AA screening and

inadequacy of certain information before the Board.

25. As addressed in the Board’s written submissions, the assertion at Core Ground 2

that the Board failed to conduct any proper EIA in relation to swans is not properly

particularised and is without substance (see e.g. at §15.6.60 of the Inspector’s Report). The

pleaded assertion that the Board erred in failing to ensure that a Collision Risk Assessment

was conducted for Whooper Swans is misconceived. The Inspector formed the view that

same was unnecessary based on the information before her; she explained this view and it

was one to which she was rationally entitled to come. It is unclear from the Applicant’s

written submissions whether the EIA-based complaints are still being maintained by the

Applicant, and they are not addressed at all in the written submissions. In any event, same

are not properly particularised and without substance as foresaid.

26. The Applicant’s written legal submissions instead focus on the part of Core Ground

2 that makes allegations in relation to the AA screening that the Board carried out, in

particular in relation to Whooper Swan and the Blackwater Callows SPA. There is no

substance to Core Ground 2 in this regard. The AA screening that the Board completed in

respect of the proposed development was carried out in accordance with the requirements

applicable to those assessments. The Board’s conclusions for AA screening purposes were

open to it based on the materials that were before it. The adequacy of information provided

in a planning application must be assessed in context and, for planning, EIA, and AA

purposes, is primarily a matter for the Board (Heather Hill v. An Bord Pleanála [2022] IEHC

146 at §232; St. Margaret’s Recycling v. An Bord Pleanála [2024] IEHC 94 at §71; Coyne v.

An Bord Pleanála [2023] IEHC 412 at §414); Grafton Group [2023] IEHC 725 at §166). The

Board and its Inspector were expressly satisfied as to the adequacy of the information

submitted for AA purposes including the information submitted for AA screening purposes

regarding the Blackwater Callows SPA. As regards screening for AA, the Applicant has not

demonstrated that the evidence and materials that were before the Board were so flawed

on their face that a reasonable expert would have objected to them. There was clearly

sufficient information before the Board, including in relation to AA, to allow it to reach the

decision it did on the subject application. The non-expert assertions and merits-based

submissions of the Applicant (who is the litigant in this action and is not independent) are

not a basis for and do not establish any inadequacy or deficiency in the AA screening carried

out by the Board nor any inadequacy in the AA Screening Report or any other supporting

documentation before the Board that was submitted by the Notice Party in the course of the

planning application process. The Applicant’s non-expert assertions by reference to the SNH

Guidelines are incorrect and without substance as is the related unevidenced, non-expert

merits-based assertion that there was ‘limited survey effort involved’ which is simply wrong

and, inter alia, has also been refuted by uncontested expert evidence from the Notice Party.

The Applicant has failed to demonstrate a defect in AA screening on the evidence. The

Applicant’s assertion that Eco Advocacy is distinguishable is misplaced and incorrect.

Notice Party Position -

27. This ground does not overlap with Core Ground 7 – it is directed at alleged

inadequacies in the Board’s AA Screening and the evidence before the Board – as opposed

to any jurisdictional complaint.

28. This ground is premised on the Applicant’s ultracrepidarian and erroneous assertions

that ‘very little effort was made by the developer to search for Whooper Swan on site and

in the absence of bird counts and…wrongly relied on the 5km foraging distance’. The

Applicant asserts that the AA Screening Report/the Board’s AA Screening is flawed as it did

not consider/comply with the Scottish National Heritage document entitled ‘Recommended

bird survey methods to inform impact assessment of onshore windfarms’ (‘SNH 2017

Guidance’).

29. The ground not only comprises malobservations, but is factually wrong. The

Applicant fails to note that SNH 2017 Guidance was expressly adhered to, and further 2018

guidance from Scottish Natural Heritage entitled ‘Avoidance rates for the onshore SNH wind

farm collision risk model’ (‘SNH 2018 Guidance’) was also considered – see the further

information provided by MKO included ‘Appendix 3 – Further Information Response –

Ecology’, dated 28 September 2022.

30. Insofar as the Applicant also alleges an inadequacy in the survey effort – which non-

expert allegation is based on the incorrect assertion that SNH 2017 Guidance was not

considered – this equally amounts to nothing of substance.

31. The SNH Guidance relates to and concerns the methodology adopted on behalf of

Curns by its expert consultants (MKO) for the purposes of assessing collision risk impacts on

Whooper Swan – which is in itself a matter/exercise of expert judgment – it is important to

recall that no evidence has been presented to suggest that there was anything irrational

about this approach. Insofar as this sub-ground requires the consideration of the question

of scientific doubt, the test is whether an applicant has demonstrated that a ‘reasonable

expert’ could have a reasonable scientific doubt as to whether there could be an effect on a

European Site based on the methodology adopted – which this Applicant has simply failed

to do”

63. We can note immediately that the applicant’s claim of modularisation is incorrect. No such

order was made.

64. The inspector, on the facts, analysed the receptor-pathway-source relationship between the

SPA and the development site as follows (p. 216):

“Potential receptor-pathway source links to Development Site

No – The SPA is in a separate hydrological catchment and does not have connectivity with

the site.

Wigeon, teal and black-tailed godwit were not recorded during the bird surveys. There is no

suitable habitat within the site for wintering populations.

Whooper Swan was recorded once. The site is not within the core foraging range (5km) of

the species

Can potential likely significant effects be excluded? – Yes”

65. The screening determination states:

“16.4.9. Having regard to the information presented in the Screening Report and NIS, the

nature, size and location of the proposed development and its likely direct, indirect and in-

combination effects, the source pathway receptor principle and sensitivities of the ecological

receptors, I concur with the applicant’s screening that significant effects cannot be ruled out

for the following sites:

• Blackwater River (Cork/Waterford) SAC [002170]

• Blackwater Estuary SPA [004028]

• Ballymacoda Bay SPA [004023]

in view of the conservation objectives of these sites.

The following European Sites -

• Ballymacoda (Clonpriest and Pillmore) SAC [000077]

ABP 309121-21 Inspector’s Report Page 219 of 279

• Blackwater Callows SPA [004094]

could not be significantly affected by the proposed development works. I am satisfied that

the applicant has demonstrated this objectively with reference to the geographical

separation from those sites and the absence of/or weak ecological pathways between those

sites. It is therefore reasonable to conclude on the basis of the information on the file, which

I consider adequate in order to issue a screening determination, that the proposed

development, individually or in combination with other plans or projects would not be likely

to have a significant effect on these 2 European Sites in view of the sites’ conservation

objectives and a Stage 2 Appropriate Assessment is not therefore required for these sites.”

66. Insofar as one can decode the oblique drafting of core ground 2, the specific complaints are

as follows (generic complaints being impermissible in an O. 84 context):

(i) Sub-grounds 23-28 – Effect on Blackwater Callows SPA was wrongly screened out

due to an incorrect interpretation of a 2016 Scottish Natural Heritage document

‘Assessing Connectivity with Special Protection Areas’

(https://www.nature.scot/sites/default/files/2022-

12/Assessing%20connectivity%20with%20special%20protection%20areas.pdf).

There is a separate 2017 document on bird survey distances which the applicant

says should have been the basis of surveys rather than the 2016 report.

(ii) Sub-ground 29 – The inspector erred in failing to have proper regard (or any regard

at all) to the ecological report included in the submission of the Alen-Buckleys. This

was prepared in 2013 for a different project but it includes scientific expert opinion

on the flight paths of Whooper Swans in the Blackwater Valley.

(iii) Sub-ground 30 – The inspector erred in failing to interrogate the broad distribution

of locations where Whooper Swan were located outside the windfarm and outside

the SPA as identified in table 5 of appendix 8.4 and the inter-connectivity of these

locations and their relationship to the Blackwater Callows SPA or other European

sites. These locations do not appear to have been mapped by the developer and the

inspector did not request a map.

(iv) Sub-ground 31 – The board erred in failing to ensure that a collision risk assessment

was conducted for swans as part of the EIA when it knew that a pair of Whooper

Swans had been recorded in flight on the site at an altitude that could collide with

turbines and acted contrary to art. 2(1) of the EIA directive.

(v) Sub-ground 32 – The board erred in failing to properly consider the flight paths of

birds between European sites in the vicinity of the proposed windfarm and or the

impact on flight paths of avoidance of other windfarms.

67. Sub-ground 33 is impermissible and in breach of the pleading requirements of O. 84. It

nowhere explains by reference to what particular matters the AA was defective in relation to the

named species. Naming species or habitats is a necessary, but not a sufficient, condition for a

correctly pleaded AA challenge.

68. The problem with all of the foregoing (even the impermissibly vague elements) is that any

one or more of the errors pleaded needs to be established evidentially (in the absence of a flaw on

the face of the decision, which has not been demonstrated).

69. The applicant did admit that “one has to peer closely at the face of the material” to see the

error – but it’s a lot worse than that.

70. The applicant simplistically opens the NatureScot guidelines, puts them beside the survey

information, claims an error on the face of the papers, and sits back contentedly awaiting certiorari,

not to speak of costs. That process is a misconception.

71. The only errors that a court can identify unaided on the face of the material are those of a

legal nature (say, using the wrong test for AA), or those which are obvious without special scientific

knowledge (say, an error in relation to generally known scientific facts). Errors that would be seen

as existing on the face of the material as it would be read by a reasonable expert need to be identified

as such by expert evidence. Errors allegedly arising from evaluative judgement misinformed by

scientific error generally fall into that category. It is not the case that an evaluative scientific

judgement is something subject to irrationality review only, as there is also scope for an expert to

demonstrate that there is factual or methodological scientific error in that process. But this applicant

hasn’t done that.

72. On the face of the NatureScot material, the guidance is far from black and white in any

event. The 2017 guidance is expressly non-prescriptive (emphasis added):

“1 INTRODUCTION

The purpose of this document is to define a set of standards for bird surveys at proposed

wind farms on land in Scotland. Survey is usually required to inform turbine layout, species

protection plans (particularly with specially protected species), and mitigation including

habitat management plans. It also informs whether they may be a requirement for future

monitoring. However it should be noted that a pre-construction survey specifically aimed at

the species and/or issues to be monitored post-consent will likely be required and this survey

should use the same methods as those being used for the post-construction monitoring.

Whilst this guidance is not prescriptive or able to cater for every possible scenario,

if followed, it should produce sufficient quantitative information to assess the potential

effects of the development on birds. This guidance is not appropriate for repowering

proposals. We are developing specific guidance in relation to repowering and developers

considering repowering should contact SNH before they plan survey work to obtain advice

on the type, level and duration of survey likely to be required.”

73. It envisages evaluative judgement as to defining the work involved:

“2.1.5 Determining the level of survey work required

The potential risk to birds varies with the size and location of the wind farm. For many

species, collision and/or displacement risk may only be a serious problem if the wind farm

is large. Larger developments will usually require a full EIA to assess potential impacts.

Smaller developments and even single turbines may also present a potential risk if placed

in areas of high bird sensitivity, particularly on or near SPAs. Survey effort and assessment

of the possible impacts of a proposed wind farm on birds should be in proportion to the scale

of the wind farm and the bird interest in the area.

A number of small scale developments, will either not require an EIA or, if they are only just

over the thresholds, require a limited environmental assessment. Typically, these very small

developments (including ‘domestic’ turbines of 15m or less) are not considered to be a

significant risk to birds, exceptions to this being proposals on or near designated sites, or

where the location is very close to the nest site of a Schedule 1 bird. Assessment of existing

bird data for the area may be all that is needed in many of these cases and simple mitigation

such as relocating the turbine further away from a designated site or a Schedule 1 bird nest

site may be sufficient to overcome any issues without the need for further survey. More

detailed guidance on small scale projects not requiring an EIA is available in Natural Heritage

assessment of small scale wind energy projects which do not require formal Environmental

Impact Assessment (EIA) (https://www.nature.scot/sites/default/files/2017-

09/Guidance%20note%20-%20Assessing%20the%20impact%20of%20small-

scale%20wind%20energy%20proposals%20on%20the%20natural%20heritage.pdf). The

location and scale of the proposal, and sensitivity of the bird interest present will determine

the target species and the duration of the survey period.”

74. This is not a mechanical process and requires an exercise to define the work parameters

relative to the particular site (emphasis added):

“2.2 Process

2.2.1 Essential preparatory work

Prior to commencing survey work, an initial sift of information will help to form a view on

the bird populations on a site and their likely sensitivity. This is the key factor in defining

the survey requirements. This is largely a desk-based stage during which existing

information is sought and collated on:

(i) birds

(ii) habitats, and thus typical bird communities; and

(iii) designated sites in the vicinity of the proposed development

The absence of data collated through these sources does NOT necessarily indicate

that there is no interest which needs to be assessed.

In the absence of adequate existing information (e.g. none available, data greater than 5

years old, etc.), information must be gathered on site to ascertain the likely bird interest.

For example a ‘Walkover’ method designed to record bird activity over large areas of ground

relatively quickly can be used. The walk route should give representative coverage of all

the key habitats on the study site and pay particular attention to features/habitats which

may be of potential ornithological importance, e.g. water bodies, woods, crags. Periodic

scanning for birds and stops to listen for calls should be incorporated. Frequency of these

walks should vary depending on the site, habitat and likely bird species present, but must

cover all seasons.

Having established a coarse overview of the likely bird populations on a site, their likely

sensitivity and the proximity of relevant designated sites, this should form the basis of the

survey programme. It will allow the selection of primary, and potentially secondary, target

species (see 3.2 below) and from these the design of the survey programme should follow.”

75. In particular, swan surveys are not automatic in all cases. As with all projects, one has to

define what is in effect a zone of influence by reference to the nature of the project, the nature of

the pathways and the nature of the receiving environment including the specific species and habitats

capable of being affected (emphasis added):

“3.7.8 Wintering and migratory waterfowl, especially geese and swans

Disturbance or displacement to wintering and migrant waterfowl can occur on both roost

sites and feeding areas, so surveys for both of these should be considered.

Substantial information on these species is already held by SNH, RSPB, WWT (for geese)

and BTO (for other waterfowl), through specific surveys and national monitoring such as the

BTO Wetland Bird Survey (WeBS). However, these may not be up to date or may not cover

all sites.

Feeding distribution surveys for geese and swans: For greylag geese and pink-footed geese

such surveys need only be undertaken when the survey area lies within known goose feeding

areas (see Mitchell, 2012). For whooper swan, Greenland whitefronted geese, bean

geese and barnacle geese feeding distribution surveys should be undertaken in

areas of suitable habitat when the survey area lies within the core foraging

distance of SPAs for these species or other major roosts unless it can be

established from existing data that the area is not utilised for feeding. Table 2 in

the SNH SPA Connectivity Guidance (https://www.nature.scot/doc/assessing-connectivity-

special-protection-areas) details the species specific wildfowl foraging ranges. SNH

also hold some feeding distribution data for these species at a number of sites.

Feeding distribution surveys of geese and swans should be carried out on a fortnightly basis

where species are likely to be wintering, or on a weekly basis for sites where birds are likely

to be present in the migration period only. The survey area should extend to 500m from

the proposed development site. Feeding distribution surveys can be undertaken by road

transects where the road network is suitable or by observations from vantage points. In

either case it is necessary to ensure that all potential feeding habitat can be surveyed.

Depending on topography this may require walking into fields to check blind areas.

In addition, searching the survey area for signs of wildfowl presence (counts of droppings)

can help determine if feeding birds are using the wind farm site by night or on days previous

to survey visits.

Roost site surveys: It is known that geese are particularly sensitive to disturbance on roost

sites. As such any known roost sites within 1km of the proposed wind farm should be

surveyed fortnightly. Methodology should follow Gilbert et al (1998). It should be noted

that roost sites may not be restricted to permanent water bodies, but may include temporary

standing water, intertidal areas and other wetland habitat.

Where significant levels of goose flight activity are anticipated from vantage point surveys,

survey of roost sites beyond 1km from the proposed wind farm site may also be necessary

to provide contextual information on local population levels for assessing predicted collision

risk from VP work.”

76. It can be noted that despite the disclaimer in the 2016 guidelines, the 2017 guidelines refer

specifically to the foraging distance in the former (as highlighted above).

77. Furthermore, Mr Cregg’s evidence supports the scientific robustness of the surveys, and this

has not been contradicted or challenged.

78. The applicant says that Mr Cregg’s affidavit is inadmissible on the grounds of its lack of

independence in the legal sense. By way of clarification, where we refer to independence here, we

are talking purely in the sense that an expert in the legal sense should not be connected with the

matter at hand.

79. The applicant says that if expert evidence is not independent the fact that it is uncontradicted

is not determinative because it may be inadmissible or of minimal weight (Duffy v. McGee [2022]

IECA 254 (Unreported, Court of Appeal, 7th November 2022) per Collins J. (Noonan J. concurring),

para. 25; Donegal County Council v. Planree Limited [2024] IECA 300 (Unreported, Court of Appeal,

18th December 2024) per Butler J. (Meenan and Hyland JJ. concurring), paras. 141-147). The

problem with that is that we are not talking about expert evidence in the legal sense here. A

professional can comment as to the adequacy of the work she actually carries out. The applicant

didn’t dispute that but rather argued that it can’t count as independent opinion evidence. Maybe

not in the sense of the caselaw, but that doesn’t make it inadmissible. A scientist can give evidence

about their own work without being an independent expert in the sense of the caselaw. Thus an

applicant is liable to be found not to have discharged the burden of proof if evidence of this nature

isn’t contradicted, even if one applies a degree of caution and circumspection to the obvious context

that the developer’s deponents are defending their own work.

80. Holland J. said in Environmental Trust Ireland [2022] IEHC 540 (Unreported, High Court,

3rd October 2022) (emphasis added):

“102. It is, in my view, an all-but-inevitable commonplace that in planning and

environmental judicial review of the grant of planning permissions and other licenses, the

application for the permission or license will have been prepared with the

assistance – indeed largely by – experts whose affidavits later feature in the

developer’s opposition in the judicial review. I am unaware of any case in which

their evidence has been excluded on that account – and in fairness ETI does not say it

should be – or deprived of weight on that account save for specific reason. It is true that,

inevitably, such experts generally ‘stand over’ on affidavit their own work in

making the relevant application. But it should be remembered – indeed

emphasised – that experts making or assisting planning applications owe, to the

Board and the public, similar duties of independence and professionalism to those

they owe to the courts. So, their ‘standing over’ in judicial review work product of that

independence and professionalism should be no surprise. The delay and expense in requiring

developers to generally retain a new expert team to defend a judicial review - inevitably on

short notice – would not be proportionate or justifiable. 103. It is, of course, entirely open

to a party to impugn the credibility evidence of expert evidence by reference to alleged

conflict of interest or lack of independence but, as RAS Medical stipulates, that must be

generally done by cross-examination of the expert whose credibility is impugned. That did

not occur here. On affidavit and absent such cross-examination it is impossible, at least

generally, to ascribe greater or lesser weight to the evidence of any expert as compared to

another.”

81. The applicant says that Mr Cregg’s position is contradicted on the documents, but it is far

from clear that the NatureScot documents do in fact contradict this. Sure, the need for dawn surveys

is ostensibly clear if you focus on that page and that page alone, but it ceases to be clear the moment

you ask in what circumstances those surveys are required. As soon as you realise that there are

prior evaluative questions – for example, how far from the European site a project can be before full

compliance isn’t required – you realise that certainty and clarity has melted away and we are plunged

straight into ecological judgement – the NatureScot guidelines aren’t prescriptive on this.

82. Mr Cregg says inter alia:

“…In this regard, the Applicant has misinterpreted the survey information and/or seeks to

rely on same to support a proposition that it is incapable of supporting...

…

In summary, as detailed in the comprehensive suite of documents which informed the

Proposed Development and the Board’s Decision, the evidence for a commuting corridor

between the Proposed Development and the Blackwater Callows SPA can be excluded

beyond reasonable scientific doubt, based on the objective information of surveys and the

likely commuting distance of the species. The conclusions of the AA Screening are therefore

entirely justified. The Applicant has adduced no evidence from a suitably qualified expert to

support any of the contentions advanced – which said contentions, respectfully, are devoid

of any scientific merit.”

83. As regards a flaw on the face of the material, the applicant relies on the table on p. 3 of

the 2016 guidance:

“Table 2 – Summary of foraging distances during winter season

Species Foraging range from night roost during

winter season

Whooper swan Core range of less than 5km.

Greylag goose Core range of 15-20km*

Pink-footed goose Core range of 15-20km*

Greenland white-fronted goose Core range of 5-8km.

Barnacle goose Core range of 15km, with maximum

recorded distance of up to 25km.

”

84. He relies on a note on p. 2:

“This guidance should not be used as a basis for setting bird survey requirements; these are

set out in ‘Recommended bird survey methods to inform impact assessment of onshore wind

farms (2017)’.”

85. Of course the problem with the fact that the 2016 guidelines only tell you what not to do,

rather than what to do, is that the moment we ask what we should do, we are in the space of expert

judgement, not error on the face of the material.

86. The 2017 document on p. 31 contains a table one of the columns of which is headed

“Temporal spread of VP hours required” (VP being vantage points). The entry for that is “Between

and including dawn and dusk”.

87. The table continues:

“Breeding season relates to the British resident population of greylag goose and due to the

growth and range expansion of the resident population it may not be possible in many

locations to differentiate between these birds and wintering Icelandic birds outwith the

breeding season. Wintering birds can feed at night, and nocturnal flights that should be

taken into account when calculating collision risk (see section 3.8). For sites which may

potentially affect birds flying to and from roost sites, observations should be conducted one

hour before dawn to one hour after dawn (or until the roost is vacated if necessary), and

one hour before dusk to one hour after dusk. For sites which are close to feeding sites or

may intercept flights between feeding sites, and away from roosts observations should be

conducted throughout the day.”

88. Appendix 8-2 of the EIAR sets out the timings of the vantage point surveys, tables 1 (birds

generally) and 5 (waterbirds) are the ones that appear on their face relevant to Whooper Swans,

and don’t begin at dawn. Even the Hen Harrier surveys in table 4 don’t begin at dawn.

89. The EIAR says that the SNH guidance has been followed, p. 83:

“In the absence of specific National Irish Ornithological Survey Guidance, the guidance

documents published by Scottish Natural Heritage (SNH) have been followed to inform this

assessment:

– SNH (2017). Recommended bird survey methods to inform impact assessment of

onshore wind farms. Guidance document by Scottish Natural Heritage, Edinburgh,

UK.

– SNH (2018) Avoidance rate information & guidance note: Use of avoidance rates in

the SNH wind farm collision risk model. Guidance document by Scottish Natural

Heritage, Edinburgh, UK. Available at: http://www.snh.gov.uk/docs/B721137.pdf.

– SNH (2016). Assessing Connectivity with Special Protection Areas (SPAs). Guidance

document by Scottish Natural Heritage, Edinburgh, UK.

– SNH (2012). Assessing the Cumulative Impact of Onshore Wind Energy

Developments. Guidance document by Scottish Natural Heritage, Edinburgh, UK.

– SNH (2006). Assessing Significance of Impacts from Onshore Windfarms on Birds

Outwith Designated Sites. Guidance document by Scottish Natural Heritage,

Edinburgh, UK.

– SNH (2009). Monitoring the impact of onshore wind farms on birds. Guidance

document by Scottish Natural Heritage, Edinburgh, UK.

– SNH (2000). Wind farms and birds: calculating a theoretical collision risk assuming

no avoidance action. Guidance Note by Scottish Natural Heritage, Edinburgh, UK.”

90. The response to further information appendix 3 pp. 10-11 states:

“1.6.2 Whooper Swan

Concerns are raised related to the potential for the proposed development to significantly

impact whooper swans. For example, one such submission stated:

The wind farm project site is located between the flight paths of Blackwater Callows

SPA and Blackwater Estuary SPA, and wind turbines form a collision risk for multiple

SCIs of these European sites.

There is a potential risk that the flight of the whooper swans would bring the whooper

swans within the vicinity of the wind farm turbines and imminent threat of loss and

collision with turbine blades.

A regularly used whooper swan commuting corridor as described was not identified during

surveys. As is noted in Section 8.4.2 of the EIAR, whooper swans were only recorded once

during vantage point surveys. Furthermore, there were no observations of whooper swan

during dusk hen harrier winter roost surveys, this is of note given whooper swans are known

to commute to roost sites at dusk. There were no other observations within 4.5km of the

wind farm site throughout a comprehensive suite of surveys (please see Section 8.2.4 of the

EIAR for survey details). There were 23 observations of whooper swan recorded during

dedicated waterfowl surveys, all of which were more than 4.5km from the proposed

development site (please see EIAR Appendix 8-3, Table 5). Flock sizes range from five to

209 birds.

Notwithstanding the above, it is acknowledged that the proposed development is located

approximately between the Blackwater Callows SPA and Blackwater Estuary SPA and if

whooper swans were to travel between these two sites there would be the potential to collide

with the proposed turbines in absence of avoidance behaviour. However, following two full

years of survey in strict accordance with SNH 2017, this species was only recorded on one

occasion.

It is noted in the literature (SNH, 20184) whooper swans show a very high rate of turbine

avoidance (99.5% avoidance). That is to say, a whooper swan flying towards a wind farm

will avoid a collision 99.5% of the time (SNH, 2018). In the present theoretical scenario,

the birds will detect and manoeuvre around the turbines 99.5% of the time on route to/from

the Blackwater Callows SPA and Blackwater Estuary SPA.

In the absence of evidence of a regularly used whooper swan commuting corridor that

crosses the site and the high rate of turbine avoidance demonstrated by this species and the

infrequent occurrence of the species, significant collision risk is unlikely.

In addition, it is noted that an impact assessment of cumulative effects including collision

risk is provided in Section 8.13 of the EIAR as submitted. Section 8.13.2 of the EIAR states

that no potentially significant cumulative habitat loss, disturbance displacement or collision

risk effects on any of the KORs has been identified with regard to the development proposal.

In the specific case of whooper swan, there was only a single (90-second flight) observation

of this species at the proposed development throughout two years of surveying. As a result

of such a low rate of occurrence, no pathway to significant effects was identified. Please see

Section 8.6 of the EIAR for further discussion. It is reasonable to conclude that such minimal

impacts could not give rise to significant cumulative effects.

Furthermore, while no significant effect has been identified, in line with best practice and

following a precautionary approach, a comprehensive programme of operational phase

surveys is proposed in the EIAR to monitor for interactions between the proposed

development and the local avian community. Please refer to EIAR Appendix 8-7 for further

details. The programme of works will monitor parameters associated with collision risk,

displacement/barrier effects and habituation during the lifetime of the project. The results

of this monitoring will be reported to the Planning Authority following each monitoring year

and will include recommendations that may inform additional mitigation if required.”

91. The problem with the argument that the claim of strict compliance with SNH guidance is

incorrect on its face is that it takes the requirement for dawn surveys as gospel. Whereas self-

evidently the need for such surveys is premised on the development having a zone of influence that

relevantly affects particular habitats and species the assessment of which is thereby required, and

a methodology that requires such surveys. The impacts on Whooper Swan appear to be negligible

given, among other things, the distance of the project from the SPA.

92. For example, Mr Cregg points out:

“The separation distance between the Proposed Development and the Blackwater Callows

SPA (9.9km) is also relevant as it exceeds the core foraging range/likely distance of travel

of the Whooper Swans (5km) as per NatureScot, formerly SNH (SNH, 2016). Furthermore,

as previously stated, the Proposed Development does not include suitable habitat for

Whooper Swans, therefore they would not have begun their flight within the Proposed

Development. It therefore follows that a Whooper Swan flight between the Blackwater

Callows SPA and the nearest suitable habitat (the River Blackwater) that crossed the

Proposed Development would be considerably further than 5km (core foraging range) and

exceed 9.9km (separation distance). Such a flight is thus even less likely.”

93. In essence, the claim made is that the project is sufficiently far from the SPA that the survey

advice isn’t determinative, and thus that later surveys as opposed to dawn surveys isn’t non-

compliance. That may be correct or it may be incorrect, but it isn’t so clearly incorrect on its face

that there is a contradiction with the materials that can be relied on by an applicant without any

expert evidence.

94. In submissions at para. 2, the developer characterises the applicant’s case as

ultracrepidarianism, and unfortunately that’s exactly what it is. Sure, in evaluating the material the

court can be assumed to have an ordinary pedestrian level of understanding of scientific concepts,

but nothing by way of special knowledge. The concept of a “flaw on the face of the material” means

something that can be assessed without any such special knowledge. Once the comfortable world

of black and white starts slipping into shades of grey – once the apparently clear need for particular

surveys pixelates, on closer examination, into granular questions about when, where, how often and

for how long surveys should be carried out, what are the triggering conditions, how far from a site

warrants a survey of the species relevant to that site, and so on – we are unexpectedly and

unwillingly hurled from the comfortable oasis of error-on-the-face-of the material into the

confounding wilderness of expert opinion. The former environment is not a trackless desert for a

court unaided by evidence but unfortunately the latter generally is. The developer has brought

forward evidence to support the decision, which is presumed valid anyway. The applicant has not

challenged that or brought forward expert evidence of his own. A finding of breach of the habitats

directive, let alone imperative relief, can’t arise in such a situation.

95. As regards evidentially demonstrating a flaw not on the face of the material, that

fails for similar reasons. The applicant has not done that. The applicant’s non-expert assertions do

not constitute such evidence and in any event are contested, so in the absence of cross-examination

the applicant couldn’t succeed anyway.

96. As the board summarises (submissions para. 17):

“the uncontested expert affidavit of Padraig Cregg, Principal Ornithologist for MKO Planning

and Environmental Consultants, sworn on 9th October 2024, filed by the Notice Party, in

detail addresses, refutes and undermines the non-expert merits-based assertions advanced

by the Applicant in relation to AA screening at Core Ground 2”

97. For good measure, the approach of rejecting, due to lack of evidence, a point of challenge

that requires evidence, shouldn’t be controversial and is consistent with numerous previous cases,

see e.g. An Taisce v. An Bord Pleanála (No. 1) [2021] IEHC 254 (Unreported, High Court, 2nd July

2021) (§31 et seq.); Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2022]

IEHC 700 (Unreported, High Court, 16th December 2022) (§59 et seq.); Carrownagowan Concern

Group & Ors v. An Bord Pleanála (No. 2) [2024] IEHC 300 (Unreported, High Court, 20th May 2024)

(§191); Roache v. An Bord Pleanála [2024] IEHC 311 (Unreported, High Court, Phelan J., 21st May

2024) (§117); Kennedy v. An Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7th October

2024) at 73; Ryanair DAC v. An Bord Pleanála [2025] IEHC 74 (Unreported, High Court, 14th

February 2025) (§64 et seq.); analogously, Donegal County Council [2024] IECA 300 (Unreported,

Court of Appeal, Butler J., 18th December 2024), para. 141. As noted in Nagle View Turbine Aware

Group v. An Bord Pleanála [2024] IEHC 603 (Unreported, High Court, 1st November 2024),

summarised in the non-precedential determination refusing leave to appeal [2025] IESCDET 41

(O’Malley, Murray and Donnelly JJ., 10th March 2025) at para. 8, “the critical point was that

scientific and factual shortcomings in EIA or indeed in an Appropriate Assessment, must

be established by the applicant who bore the burden of proof”.

98. As regards the costs of core ground 2 (and other dismissed points), to enable the opposing

parties to take instructions should any issues of set-off arise, the appropriate procedure is at least

provisionally to reserve such costs incurred by the opposing parties, while making no order as to the

costs of the applicant on the dismissed points.

Core ground 4 – EIA cumulative impacts

99. Core ground 4 is:

“4. The impugned decision is invalid in that it contravenes Article 2(1) of the EIA

Directive as implemented by Part X of the Planning and Development Act 2000 and Part 10

and Part 18 Planning and Development Regulations 2001 as amended, because the Board

failed to ensure that, before development consent was given, the whole project was made

subject to the requirement for development consent and an assessment with regard to its

direct and indirect significant effects on the environment, including the replanting of

compensatory forestry lands on a 49.9 hectare site in Ballymote, Co. Sligo; and acted

contrary to Article 3(1) by failing to ensure that the environmental impact assessment

identified, described and assessed in an appropriate manner, the direct and indirect

significant effects of the project on factors including biodiversity, land, soil, air, water,

climate and the landscape and the interaction between these factors for the whole project

including the replanting lands, and acted contrary to Article 4(3) by adopting the Inspector’s

screening out of any requirement for EIA of the cumulative impacts and or direct and indirect

significant effects of the afforestation of the Ballymote lands due to the distance of 280

kilometres between the windfarm and the compensatory forestry lands in Sligo; and acted

contrary to Annex IV by failing to have proper regard to any indirect, secondary, cumulative,

transboundary, short-term, medium- term and long-term, permanent and temporary,

positive and negative effects of the project and gave no proper reasons for failing to assess

the impacts of the afforestation at Ballymote and contrary to s.172 of the Planning and

Development Act, 2000 as amended being the transposing provision for the above articles

of the EIA Directive into the planning legislation. Further particulars are set out in Part 2

below.”

100. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant’ Position –

27. In summary, the Board breached the EIA Directive by failing to carry out an EIA or

proper EIA screening on the impact of the compensatory afforestation of just under 50

hectares of land in Co. Sligo.

28. The developer maintains that a form of ‘approval in principle’ has been received for

the afforestation project in Sligo. Details are provided in Appendix 4-3 of the EIAR. The

statutory basis for this is unknown. The Inspector declined to conduct any assessment

because of the distance between the two sites, which is not a legitimate reason if the

proposed development causes impacts to the environment by compensatory afforestation,

even at a distance. The area to be afforested (49.9 hectares) is nominally sub threshold for

the EIA obligation in S.I. No. 191/2017 - Forestry Regulations 2017.

Board’s Position –

29. Under Core Ground 4, the Applicant in essence contends that the Board was required

to conduct an EIA in respect of the intended replanting of forest in County Sligo

(approximately 280km away from the application site) to compensate for the felling of lands

at the development site, as such replanting formed part of the ‘project' in respect of which

EIA was required. This is misconceived as it is well-established in law, and in particular by

reference to the Supreme Court decision in Fitzpatrick v. An Bord Pleanála [2019] IESC 23,

[2019] 3 IR 617, that the project which must be the subject of an EIA is the proposed

development in respect of which planning permission is being sought. The Board did not,

and did not purport to, grant development consent for replanting of forest in Co. Sligo. Core

Ground 4 is based on an erroneous premise, namely the Applicant’s misconception as to

what comprises the project/proposed development for the purposes of the EIA Directive.

Furthermore, the pleaded allegation of ‘project splitting’ is misconceived.

30. The proposed development in this instance is the proposed windfarm development

the subject matter of the planning application. Same was subject to a valid EIA by the

Board. Further, as part of the EIA it carried out, the Board in fact did assess the said

afforestation in Co. Sligo in the context of considering potential cumulative effects arising

from the proposed development when considered in conjunction with other projects, and

same was also assessed in the relevant application documentation submitted by the Notice

Party (see e.g., §3.16.2, §14.8.2, §14.8.3, §15.7.27 of the Inspector’s Report, and §16.5.18

of same in an AA context, and page xii, §4.3.10, §10.5.6 and Appendix 4-3 of the EIAR).

Further, as correctly noted by the Inspector (at §14.8.2 and §14.8.3 of the Inspector’s

Report) the said afforestation in Co. Sligo is subject to a different licencing/consent process

in respect of which the Board is not the consenting authority.

Notice Party Position –

31. The Applicant’s assertion appears to be that the Board erred in failing to regard the

replanting of trees in Sligo as part of the same EIA Wind Farm ‘project’. This contention is

misconceived and, not surprisingly, there is no attempt by the Applicant in his Submissions

to explain how the replanting of trees some 280km from the development site could

conceivably be considered as part of the Wind Farm Development. There is no functional

connection and/or interdependence between such matter. The afforestation in Sligo is

subject to a different licencing/consent process. Moreover, the Board assessed same in the

context of considering potential cumulative effects arising from the Wind Farm Development

in the context of EIA. No legal error arises in this regard and the Applicant’s complaints of

‘project splitting’ are misconceived.”

101. It’s tempting to dismiss this impenetrable ground out of hand due to its obvious deficits in

comprehensibility. While I don’t need to go quite that far, in broad terms I would be inclined to

agree with the developer’s submission:

“60. The thrust of the Applicant’s complaint under this Core Ground is somewhat difficult

to decipher – particularly in circumstances where the Applicant’s complaints, as per his

Submissions, appear to refer to the restructuring of rural landholdings and the Statutory

Instrument relevant to same. However, there is no pleaded case raising such issues.”

102. To set the context, the project was subjected to full AA and full EIA, as noted in the board

order.

103. The inspector says:

“3.16. Tree Felling and Forestry Replacement

3.16.1. A total of 45.6 hectares of forestry is required to be permanently felled within and

around the footprint of the proposal with an additional 5.4 hectares proposed to be

temporarily felled (see Fig. 4-21). The tree felling activities required as part of the proposal

will be the subject of a Felling Licence application to the Forest Service, in accordance with

the Forestry Act 2014 and the Forestry Regulations 2017 (SI 191/2017) and as per the

Forest Service’s policy on granting felling licenses for wind farm developments. The policy

requires that a copy of the planning permission for the wind farm be submitted with the

felling licence applications; therefore, the felling licenses cannot be applied for until such

time as planning permission is obtained for the proposal.

3.16.2. Replanting is a requirement of the Forestry Act. The replacement of the felled

forestry can occur anywhere in the State subject to licence. A potential replanting site of

49.9 hectares has been identified in County Sligo. The lands have been granted Forest

Service Technical Approval for afforestation, and these or similarly approved lands will be

used for replanting should the proposed wind farm receive planning permission. A

description of the proposed replanting lands and an assessment of the potential impacts are

provided in Appendix 4-3 of the EIAR.”

104. And goes on:

“14.8. Replant Lands

14.8.1. A total of 45.6 hectares of forestry is required to be permanently felled within and

around the footprint of the proposed development with an additional 5.4 hectares proposed

to be temporarily felled. The tree felling activities required as part of the proposal will be

the subject of a Felling Licence application to the Forest Service, in accordance with the

Forestry Act 2014 and the Forestry Regulations 2017 (SI 191/2017) and as per the Forest

Service’s policy on granting felling licenses for wind farm developments. The policy requires

that a copy of the planning permission for the wind farm be submitted with the felling licence

applications; therefore, the felling licenses cannot be applied for until such time as planning

permission is obtained for the proposal.

14.8.2. Replanting is a requirement of the Forestry Act and is primarily a matter for the

statutory licensing processes that are under the control of the Forest Service. The

replacement of the felled forestry can occur anywhere in the State subject to licence. A

potential replanting site in County Sligo with an approved area for planting of 49.9 hectares

has been identified. The lands have been granted Forest Service Technical Approval for

afforestation, and these or similarly approved lands will be used for replanting should the

proposed wind farm receive planning permission.

14.8.3. A description of the proposed replanting lands and an assessment of the potential

impacts including cumulative impacts associated with afforestation at this location are

provided in Appendix 4-3 of the EIAR. Given that the Board is not the consenting authority

for either the felling or replanting I will not be addressing this document in my assessment.

For the sake of clarity the replant lands will only be considered in this report in the context

of cumulative impacts/in-combination effects.”

105. The in-combination/ cumulative effects discussion is:

“In-combination effects with plans, projects and activities

16.5.16. In terms of possible in-combination effects, plans, programmes and existing and

proposed developments were considered including Waterford City and County and Cork

County Development Plans, The Regional Planning Guidelines for the South East 2010-2022

(as applicable at the time of NIS preparation) and other windfarms both existing, permitted

and refused permission. This complete assessment allows for clear, precise and definitive

conclusions to be reached in terms of adverse effects on the integrity of European sites.

16.5.17. I do not consider that there are any specific in-combination effects that arise from

other plans or projects. The NIS considered the combined impacts of the overall

development proposal on the site. I consider that any potential for in-combination effects

on water quality in the River Blackwater (Cork/Waterford) SAC, Blackwater Estuary SPA and

potential for collision risk/disturbance and displacement of SCIs of Blackwater Estuary SPA

and Ballymacoda Bay SPA is negligible. Furthermore, other projects within the area which

can influence water quality via rivers and other surface water features are also subject to

AA.

16.5.18. In terms of forestry development which arises within the area or proposed

replanting resulting from the proposal, I would note, as stated above, that forestry

management is subject to a separate licencing regime which, itself, addresses matters

including water quality. In terms of the replant lands in Ballymote, Co. Sligo, the separation

distance of in excess of 280km would provide that no in-combination effects could be

reasonably expected to occur.”

106. The relevant part of the core ground is:

“4. The impugned decision is invalid in that it contravenes Article 2(1) of the EIA

Directive as implemented by Part X of the Planning and Development Act 2000 and Part 10

and Part 18 Planning and Development Regulations 2001 as amended, because the Board

failed to ensure that, before development consent was given, the whole project

was made subject to the requirement for development consent and an assessment

with regard to its direct and indirect significant effects on the environment,

including the replanting of compensatory forestry lands on a 49.9 hectare site in Ballymote,

Co. Sligo; and acted contrary to Article 3(1) by failing to ensure that the environmental

impact assessment identified, described and assessed in an appropriate manner, the direct

and indirect significant effects of the project on factors including biodiversity, land, soil. air,

water, climate and the landscape and the interaction between these factors for the whole

project including the replanting lands, and acted contrary to Article 4(3) by adopting the

Inspector’s screening out of any requirement for EIA of the cumulative impacts

and or direct and indirect significant effects of the afforestation of the Ballymote

lands due to the distance of 280 kilometres between the windfarm and the

compensatory forestry lands in Sligo; and acted contrary to Annex IV by failing to have

proper regard to any indirect, secondary, cumulative, transboundary, short-term, medium-

term and long-term, permanent and temporary, positive and negative effects of the project

and gave no proper reasons for failing to assess the impacts of the afforestation at

Ballymote and contrary to s.172 of the Planning and Development Act, 2000 as amended

being the transposing provision for the above articles of the EIA Directive into the planning

legislation. Further particulars are set out in Part 2 below.”

107. Much of the core ground is essentially elaborative or repetitive but the essential points made

are:

(i) the board should have assessed the replanting above and beyond its relevance to

cumulative impacts;

(ii) insofar as cumulative impacts are concerned the inspector erred in screening out

impacts; and

(iii) there was a lack of reasons for failing to assess the replanting above and beyond in

terms of cumulative impacts.

108. A critical point under all of these headings is noted by the inspector (at §14.8.2 and §14.8.3

of the inspector’s report): the afforestation in Co. Sligo is subject to a different licencing/consent

process in respect of which the board is not the consenting authority.

109. The current situation is that a felling licence is required for the site which hasn’t been applied

for due to the judicial review, and an afforestation licence is required for the Sligo site which hasn’t

been applied for, for similar reasons as it requires a valid planning permission. Both licences are

matters for the Minster for Agriculture under the Forestry Act 2014 and Forestry Regulations 2017

(S.I. No. 191 of 2017), which require EIA in specified circumstances. The afforestation proposal has

a technical approval from the Forestry Service which the developer characterises as a type of

development consent.

110. The basic principle is that the project to be assessed is that for which consent is sought, but

if the project is part of a larger project (or series of projects to be considered together) then

thresholds have to be considered in the light of the total project. Also in-combination effects need

to be factored in either way insofar as screening or EIA arises.

111. That said, notwithstanding the different consenting authorities, if the project being

consented was sub-threshold, but the project as a whole was supra-threshold, then EIA would have

been required. However that is not this case. EIA of this development was required and was

carried out. The EIA did consider cumulative and in-combination effects with the future replanting.

Any further EIA procedures in relation to the replanting are a matter for the Minister when consent

is considered. The Minister must treat the replanting as requiring EIA if, inter alia, such works would

have significant effects on the environment in combination with the rest of the project. So thus far

anyway there is no project-splitting or other failure of assessment. There has been no evasion of

assessment – the project was assessed. There is no additional obligation on the board to anticipate

the forestry consent by not only subjecting this project to EIA and not only considering the in-

combination effects but also carrying out EIA on a part of the project yet to be the subject of consent.

The board’s obligation would be more extensive if the works under the planning application did not

require EIA but the project as a whole did. As I say, that doesn’t arise here.

112. The erroneous-screening-out point is misconceived. There is no basis pleaded and certainly

no meaningful evidence as to why the screening out was erroneous, and the vast distance from the

project makes such cumulative impacts utterly implausible to begin with. This plea is in any event

impermissible by reference to the requirement to specify the facts and matters grounding the point

under O. 84 RSC. But the point fails on the merits irrespective of that.

113. The reasons complaint is misconceived. Either the board’s approach was legally correct or

not. If correct, the decision doesn’t become invalid due to the board’s failure to give reasons for

rejecting a legally bogus point.

114. Sub-ground 43 pleads:

“43. The Inspector led the Board into error when failing to properly assess direct, indirect

and cumulative effects of the lands designated for reafforestation in Co. Sligo as a

compensatory measure for the removal of more than 50 hectares of woodland on the

windfarm site. These activities (the deforestation for the windfarm and the

replanting in Co. Sligo) are part of the same project and the impacts caused to wildlife

and species and habitats and conservation by the afforestation of lands in Sligo is a direct

consequence of the removal of forestry to facilitate the construction of the impugned

development and the Board erred in failing to consider cumulative impacts.”

115. The problem with that argument is that it is unfounded on the facts. As the board points

out, as part of the EIA it carried out, the board in fact did assess the relevant afforestation in Co.

Sligo in the context of considering potential cumulative effects arising from the proposed

development when considered in conjunction with other projects.

116. Sub-ground 44 pleads:

“44. The Sligo lands are rich in biodiversity as can be seen from Appendix 4-3 of the

EIAR. Impacts on this site have not been assessed by the Board.”

117. That is just a purported statement of fact and not a pleaded basis for certiorari.

118. Sub-ground 45 pleads:

“45. The developer maintains that a form of approval in principle has been received for

the afforestation project in Sligo. Details are provided in Appendix 4-3 of the EIAR. The

Inspector declined to conduct any assessment because of the distance between the two

sites. The area to be afforested (49.9 hectares) is nominally sub threshold for the EIA

obligation in S.I. No. 191/2017 - Forestry Regulations 2017. The Board did not consider

if this was a tactic to avoid mandatory EIA and the removal by s. 4(4) of the Planning

and Development Act of the planning exemption enjoyed by afforestation. This is a form

of project splitting to avoid EIA and is contrary to EU law and the Board erred in

facilitating it.”

119. The first part of the sub-ground is context or statements of fact. The basic allegation is of

facilitating project-splitting or failure to consider project-splitting.

120. The problem with that argument is that afforesting a sub-threshold area is not in itself

project-splitting. Dividing an afforested area into two sub-threshold pieces would be project-splitting

but selecting a size for a development that falls below thresholds is permissible and there is

absolutely nothing in law or logic to contend otherwise. In any event it is not clear that the project

is in fact sub-threshold.

121. In fact it emerged in the oral submissions that the applicant was using the term project-

splitting in an unhelpfully imprecise non-technical sense as meaning a failure to assess the whole

project, which I have already dealt with above.

122. So core ground 4 simply has no substance on the facts.

Legislative validity or transposition issues

Core ground 7 – lack of conservation objectives

123. Core ground 7 is:

“7. The Second and Third and Fourth Respondents have failed to fulfil their obligations

under Articles 3, 4(1) and 4(2) of Directive 2009/147/EC of the European Parliament and of

the Council of 30 November 2009 on the conservation of wild birds (‘the Birds Directive’)

and Article 6 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’) as implemented by SI 477 of

2011 and in particular Article 26 thereof by failing to establish the necessary site specific

conservation objectives and conservation measures in the Blackwater Callows SPA involving,

if need be, appropriate management plans specifically designed for the site or integrated

into other development plans, and appropriate statutory, administrative or contractual

measures which correspond to the ecological requirements of the site’s qualifying interests

the Whooper Swan, the Wigeon, the Teal, the Black-Tailed Godwit and other ‘Wetland and

Waterbirds’ that use the SPA and the impugned decision is invalid as a result because the

Board could not conduct an appropriate assessment and therefore had no jurisdiction to

make the decision. Further particulars are set out in Part 2 below.”

124. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant’ Position –

45. In summary, the State Parties breached the Habitats and Birds Directives by failing

to establish the necessary site specific conservation objectives and conservation measures

in the Blackwater Callows SPA. A similar declaration was conceded in Power v. An Bord

Pleanála [2024] IEHC 108 – see paragraph 12 thereof. It is contended that the Board’s

decision is invalid as a result; a similar question has recently been referred to the CJEU -

Power v. An Bord Pleanála [2024] IECA 295.

46. The State Respondents in their opposition papers have accepted that they failed to

fulfil their obligations under Articles 3, 4(1) and 4(2) of the Birds Directive and Article 6 of

the Habitats Directive, as implemented by S.I. No. 477 of 2011 and in particular Article 26

thereof, by failing to establish the necessary site specific conservation objectives and

conservation measures in the Blackwater Callows Special Protection Area, in line with the

declaration to that effect made by Mr Justice Holland in Power An Bord Pleanála & Ors.

[2024] IEHC 108 on 28 February 2024, i.e. subsequent to the commencement of these

proceedings.

Board’s Position –

47. The Board’s Decision is not invalid for the reasons alleged at Core Ground 7. Noting

the making of the CJEU reference by the Court of Appeal in Power v. An Bord Pleanála [2024]

IECA 295 and any modularisation of this ground pending delivery of the CJEU’s judgment in

same, insofar as Core Ground 7 relates to the validity of and/or reliefs sought in relation the

Board’s Decision, the Board maintains in full its pleaded position that the absence of such

specific conservation objectives or measures does not have the effect in law for which the

Applicant contends. Same do not and in this case did not prevent the Board from carrying

out its functions when it comes to the Habitats Directive or domestic law giving effect to

same.

48. While the Board is neutral on any application for modularisation of Core Ground 7,

for the avoidance of doubt, the question the subject of the preliminary reference in Power is

not the same as that which arises here. In the present case, the Board screened out the

necessity for Appropriate Assessment in respect of the potential effects of the proposed

development on the Blackwater Callows Special Protection Area (‘SPA’); it was satisfied that

the proposed development was not likely to have a significant effect on that site. Power

concerns whether valid site-specific conservation objectives (‘SSCOs’) are a jurisdictional

pre-requisite to carrying out Appropriate Assessment; whereas the issue which arises in the

present case is therefore whether SSCOs are a jurisdictional requirement to carrying out

screening for Appropriate Assessment. For the avoidance of doubt, the Board submits that

an absence of SSCOs does not preclude the Board from completing a screening for

appropriate assessment. Article 6(3) of the Habitats Directive links conservation objectives

to the completion of an appropriate assessment, by stating that a project likely to have a

significant effect on a European Site ‘…shall be subject to appropriate assessment of its

implications for the site in view of the site’s conservation objectives’. Article 6(3) makes no

reference to conservation objectives in the context of a screening for appropriate

assessment. Consequently, there is no textual link in the Habitats Directive between a

screening for AA and the existence of SSCOs.

49. Further and without prejudice to the foregoing, the Board maintains that, having

regard to the materials that were before the Board and in the particular factual

circumstances of this case, this complaint at Core Ground 7, insofar as concerns the validity

of the Board’s Decision, comprises excessive formalism and is not something that makes

any difference to anything in specific terms and/or is trivial and/or insubstantial and does

not in itself constitute a basis for nor warrant certiorari of the Board’s Decision or any other

relief. On the basis of the actual evidence, this is a case where, per Lord Carnwath in R.

(Champion) v. North Norfolk District Council [2015] UKSC 52, [2015] 1 W.L.R. 3710 at §62,

insofar as concerns the screening for AA that the Board carried out in respect of the

Blackwater Callows SPA, ‘there is no reason to think that a different process would have

resulted in a different decision’. In other words, there is nothing to suggest that the

existence of SSCOs would alter the conclusion that the proposed development is not likely

to have a significant effect on the Whooper Swan or the SPA. .

Notice Party Position -

50. Curns adopts the submissions of the Board that on the evidence in this case, there

was no risk to any of the Qualifying Interests of the SPA – thus, there is nothing to suggest

that the existence of more site specific conservations interests would have resulted in a

different AA Screening outcome.”

125. We need to keep in mind the factual context here. As stated by Mr Cregg in his October

2024 affidavit (and I accept his generally uncontradicted evidence overall):

“10. Before considering the specific complaints advanced by the Applicant in relation to

AA Screening for the Blackwater Callows SPA, noting that the Applicant does not appear to

have done so, it is important to set out the relevant context to the Board’s Decision and the

AA Screening conclusions so that same are properly understood. In this regard, the context

includes, inter alia:

(a) The application documentation comprising, inter alia, a Natura Impact Statement

(‘NIS’) which included, at Appendix 1 of same, an AA Screening Report prepared by MKO,

dated 4th January 2021 (‘the AA Screening Report’). The AA Screening Report:

(i) Provides details of the expertise of the authors of the AA Screening Report, including

those referred to previously herein, together with information on survey efforts and field

assessments (inter alia §1.1.2). I would observe that in these proceedings the Applicant

has not taken issue with the expertise of the said authors, nor has he produced any evidence

from similarly/appropriately qualified experts to support any of his contentions in relation to

AA Screening.

(ii) Identifies the location and characteristics of the Proposed Development (§2.1-§2.2).

(iii) Identifies the baseline ecological environment (§2.2.2).

(iv) Identifies the methodology utilised for identifying relevant European Sites, including

the Blackwater Callows SPA (Table 3-1, pg.13-14).

In this regard, same notes that the SPA is 9.9km from the development site; highlights, by

reference to the NPWS information, the Qualifying Interests including Whooper Swan,

Wigeon, Teal, Black-tailed Godwit and Wetland and Waterbirds; notes the Conservation

Objectives which include to ‘maintain or restore the favourable conservation condition of the

bird species’ listed for the SPA; and concludes that there was no possibility of significant

effects – stating:

‘Wigeon, teal and black-tailed godwit are all designated for their wintering populations.

These SCI species were not recorded during the extensive suite of bird surveys carried out.

There is no suitable habitat within the proposed development site for wintering populations

of these species given the extent of plantation forestry occurring within the study area. The

site is also located outside the zone of sensitivity of any species that is listed as particularly

sensitive to wind energy development in Mc Guinness et.al (2015). There is therefore no

potential for impact.

The proposed development site is not located within the core foraging range of wintering

Whooper swan, which is listed as less than 5km, as per SNH guidelines (2016). Whooper

swan were only recorded on one occasion during dedicated bird surveys of the development.

Consequently, the potential for direct and indirect impacts on whooper swan populations

associated with the Blackwater Callows SPA can be discounted.’

(v) Outlines that the Blackwater Callows SPA was thus ‘screened out’- with Appendix 4

to the NIS containing Birds Maps.

It is my professional opinion that the AA Screening Report conclusions were based on the

best scientific knowledge. The Applicant has not demonstrated, by reference to any scientific

knowledge, any basis to question the conclusions of the AA Screening Report in this regard.

(b) The application documentation also contained an Environmental Impact Assessment

Report (‘EIAR’), prepared by MKO on behalf of Curns. The EIAR, at Section 8.4.2, outlined

that Whooper Swans were only recorded once during the survey effort.

(c) The Report received from Cork County Council, pursuant to s.37E(5) of the 2000

Act, provides comments on the application documentation, including the AA Screening

Report (Part 7). The Council’s opinion, which was informed by the Heritage Unit of Cork

County Council, was that the Proposed Development would not have a significant negative

effect on the ecology of the area and did not represent a significant threat to protected or

qualifying avian species of SPAs. The Applicant takes no issue with this view in the within

proceedings.

(d) The Report received from Waterford City and County Council on the Proposed

Development, dated 5th March 2021, also considered the AA Screening Report and noted

that the Heritage Officer had stated that the risk of bird strike had not been considered in

respect of the qualifying interests for the Blackwater Callows SPA.

(e) Submissions also sought to raise issue with Whooper Swans and the Blackwater

Callows SPA.

(f) On 8th April 2022, the Board wrote to MKO seeking specified further information,

pursuant to s.37F(1) of the 2000 Act, which included a request to respond to

submissions/observations made.

(g) The further information provided by MKO included ‘Appendix 3 – Further Information

Response – Ecology’, dated 28th September 2022. Same, inter alia, at §1.6.2, addresses

Whooper Swan and the Blackwater Callows SPA – noting:

‘… [I]t is acknowledged that the proposed development is located approximately between

the Blackwater Callows SPA and Blackwater Estuary SPA and if whooper swans were to travel

between these two sites there would be the potential to collide with the proposed turbines

in absence of avoidance behaviour. However, following two full years of survey in strict

accordance with SNH 2017, this species was only recorded on one occasion.

It is noted in the literature (SNH, 2018 ) whooper swans show a very high rate of turbine

avoidance (99.5% avoidance). That is to say, a whooper swan flying towards a wind farm

will avoid a collision 99.5% of the time (SNH, 2018). In the present theoretical scenario,

the birds will detect and manoeuvre around the turbines 99.5% of the time on route to/from

the Blackwater Callows SPA and Blackwater Estuary SPA.

In the absence of evidence of a regularly used whooper swan commuting corridor that

crosses the site and the high rate of turbine avoidance demonstrated by this species and the

infrequent occurrence of the species, significant collision risk is unlikely.

In addition, it is noted that an impact assessment of cumulative effects including collision

risk is provided in Section 8.13 of the EIAR as submitted. Section 8.13.2 of the EIAR states

that no potentially significant cumulative habitat loss, disturbance displacement or collision

risk effects on any of the KORs has been identified with regard to the development proposal.

In the specific case of whooper swan, there was only a single (90-second flight) observation

of this species at the proposed development throughout two years of surveying. As a result

of such a low rate of occurrence, no pathway to significant effects was identified

Furthermore, while no significant effect has been identified, in line with best practice and

following a precautionary approach, a comprehensive programme of operational phase

surveys is proposed in the EIAR to monitor for interactions between the proposed

development and the local avian community. Please refer to EIAR Appendix 8-7 for further

details. The programme of works will monitor parameters associated with collision risk,

displacement/barrier effects and habituation during the lifetime of the project. The results

of this monitoring will be reported to the Planning Authority following each monitoring year

and will include recommendations that may inform additional mitigation if required.’

(h) The further information also comprised:

(i) Document entitled ‘Further Information Response (Part 1)’, which addressed

submissions/concerns raised in respect of Whooper Swans and the Blackwater Callows SPA.

(ii) Document entitled ‘Response to Observations’, which also addressed submissions in

respect of Whooper Swan (§3.5).

(i) In light of the further information, Waterford City and County Council did not raise

any further issues.

(j) The Inspector’s Report, in the context of AA Screening, inter alia:

(i) Noted the report from Waterford City and County Council – including the Heritage

Officer’s note on the Blackwater Callows SPA and bird strikes (inter alia, §8.1.3 and §8.1.6).

(ii) In the context of summarising EIA (inter alia, §15.6.60), outlined that the Proposed

Development would not have a significant impact on Whooper Swan in terms of collision risk

– this determination was made based on the evidence presented, including by way of further

information.

(iii) In the context of AA Screening (inter alia, §16.4 et seq), considered the Blackwater

Callows SPA (pg.216) and, having noted the Special Conservation Interests which included

the Whooper Swan, found that there was no potential receptor-pathway-source links to the

development site. In this regard, the Inspector noted, inter alia, that the site is not within

the core foraging range (5km) of the Whooper Swan. The Inspector found that the potential

for likely significant effects could be excluded.

(iv) Concluded (pg.218-219) that the Blackwater Callows SPA could ‘not be significantly

affected’ by the Proposed Development. In respect of the Blackwater Callows SPA, the

Inspector concluded that it was ‘therefore reasonable to conclude on the basis of the

information on the file, which I consider adequate in order to issue a screening

determination, that the proposed development, individually or in combination with other

plans or projects would not be likely to have a significant effect on these 2 European Sites

in view of the sites’ conservation objectives and a Stage 2 Appropriate Assessment is not

therefore required for these sites.’

(k) As per the Board Order, in making its AA Screening determination, the Board

considered the Habitats Directive and the Birds Directive (pg.3). It ‘accepted and adopted’

(pg.4) the Inspector’s AA Screening conclusions – including the aforesaid conclusions in

relation to the Blackwater Callows SPA.

11. As is apparent from the foregoing context, it was the shared views of MKO, the

respective Councils, the Inspector and the Board, that the Blackwater Callows SPA could be

screened out from Stage II AA. These views were premised on the best available scientific

knowledge and the independent assessment of the available evidence. By way of general

observation in respect of the Applicant’s complaints, it is noted that same are not advanced

by reference to any scientific knowledge or evidence at all. Having reviewed the Applicant’s

complaints, same are not subtended on any scientific/evidential basis whatsoever and, at

best, comprise unsubstantiated assertions.

12. Turning to the specific allegations made, it is observed that the Applicant alleges

(§26-§27) that the Inspector and the Board misinterpreted the SNH Guidelines – the basis

for this contention is not clear and is not supported by the documentation that was before

the Board, including that prepared by MKO, which correctly interpreted the said Guidelines.

Moreover, the related/linked complaint advanced by the Applicant that ‘very little effort’ was

made to survey Whooper Swans is completely rejected – in making such assertions, it is

noted that there is complete failure by the Applicant to advance same by reference to the

totality of the evidence that was before the Board – including the evidence prepared by MKO,

which is referred to above. As is apparent from the foregoing context, there was a significant

amount of expert evidence provided to the Board, including in respect of survey efforts,

which the Applicant has ignored and/or failed to refer to in advancing these complaints. In

addition, like many of the Applicant’s complaints, there is no expert/scientific evidence

adduced to suggest the methodology adopted for the purposes of the survey effort was

inappropriate and/or inadequate. The comprehensive suite of surveys undertaken provide

the information necessary to allow a complete, comprehensive and robust assessment of

the potential impacts of the Proposed Project on avian receptors.

13. The evidence before the Board, including that provided by MKO, as detailed above,

identified no risk to the Qualifying Interests/SCIs of the Blackwater Callows SPA, which

included the Whooper Swan. As detailed in the evidence before the Board, the single flight

that was recorded related to two individuals flying on an east-west axis – this is noteworthy

as the location of the Blackwater Callows SPA is >12km due north of this flight. In other

words, the only record of a commuting whooper swan involved birds flying in a direction that

would not have overlapped with the Blackwater Callows SPA. There were no other

observations within 4.5km of the site during a comprehensive suite of surveys (see, inter

alia, Section 8.2.4 of the EIAR for survey details). There were 23 observations of whooper

swan recorded during dedicated waterfowl surveys – all of which were more than 4.5km

from the Proposed Development site (please see EIAR Appendix 8-4, Table 5 for the names

of the locations where birds were recorded). The Board was lawfully entitled to conclude as

it did in respect of AA Screening, and it is noted that the Applicant has failed to adduce any

evidence from an appropriately qualified expert to suggest that there was any issue or doubt

in respect of the Board’s conclusions in this regard. Whilst not acknowledged or engaged

with by the Applicant, as is clear from the evidence that was before the Board, the separation

distance between the Proposed Development and the Blackwater Callows SPA (9.9km)

exceeds the core foraging range/likely distance of travel of the Whooper Swan (5km as per

SNH Guidance 2016). Furthermore, as is also apparent from the evidence which was before

the Board, the Proposed Development does not include suitable habitat for Whooper Swan,

therefore same would not have begun their flight within the Proposed Development.

14. As outlined above Core Ground 2 of the Applicant’s Amended Statement of Grounds

relates to ornithology and, in particular, an alleged Whooper Swan commuting corridor which

crosses the Proposed Development. In this regard, the Applicant posits, without any

scientific evidence to support same, that such a Whooper Swan commuting corridor exists

and that this is evidence for connectivity between the Proposed Development and the

following SPAs: Blackwater Callows SPA and Waterford Callows SPA. It is noted, for

completeness, that the Waterford Callows SPA mentioned in the Core Ground 2 (§42) does

not exist. As referred to above, the Applicant seeks to raise concerns or doubts in relation

to the screening out of the Blackwater Callows SPA from Stage II Appropriate Assessment.

In response to these assertions, I would comment as follows:

(a) As previously outlined, via further information response and reiterated herein, the

evidence provided by the surveys carried out is that the alleged regularly used Whooper

Swan commuting corridor, as contended for by Applicant, does not exist. As is noted in

Section 8.4.2 of the EIAR, Whooper Swans were only recorded once during vantage point

surveys. This is an extremely low rate of occurrence given the considerable survey effort

undertaken across two winter seasons, as outlined in EIAR Appendix 8-2. Same would also

be in keeping with the lack of suitable habitat within the Proposed Development site for

Whooper Swans. The single flight that was recorded related to two individuals flying on an

east-west axis. This is notable, given the location of the Blackwater Callows SPA >12km

due north of this flight. That is to say, the only record of a commuting Whooper Swan

involved birds flying in a direction that would not have overlapped with the Blackwater

Callows SPA. There were no other observations within 4.5km of the wind farm site

throughout a comprehensive suite of surveys (please see Section 8.2.4 of the EIAR for

survey details). There were 23 observations of Whooper Swan recorded during dedicated

waterfowl surveys, all of which were more than 4.5km from the Proposed Development site

(please see EIAR Appendix 8-4, Table 5 for the names of the locations where birds were

recorded) – none of which have any association whatsoever to the development site.

In this regard, the Applicant has misinterpreted the survey information and/or seeks to rely

on same to support a proposition that it is incapable of supporting. Again, it is noted that

the Applicant has adduced no scientific evidence to support his contentions or his

interpretation of the said survey information.

(b) Furthermore, there were no observations of Whooper Swan during dusk hen harrier

winter roost surveys. This is of note when you consider that Whooper Swans are known to

commute to roost sites at dusk.

In relation to these dusk surveys, the Applicant states: ‘According to Appendix 8.4, the

survey effort at HHVP3, the only Hen Harrier vantage point in the area of the site where the

swans were seen, was conducted for only 1 hour on 1 day, starting at 15:50 on 17 January

2018.’ In response, the following is submitted: the single Whooper Swan flight that is

mentioned is located approximately, equally distant from three of the hen harrier vantage

point locations and in fact is closest to the HHVP4 rather than HHVP3 as stated by the

Applicant. Please see EIAR Chapter 8 Figure 8-5 and EIAR Appendix 8-4 Figure 8.1.2 for

location details. These three hen harrier vantage point locations provide further evidence

that a regularly used commuting corridor does not exist.

Again, the Applicant has misinterpreted the survey information and/or seeks to rely on same

to support a proposition that it is incapable of supporting.

(c) The separation distance between the Proposed Development and the Blackwater

Callows SPA (9.9km) is also relevant as it exceeds the core foraging range/likely distance of

travel of the Whooper Swans (5km) as per NatureScot, formerly SNH (SNH, 2016).

Furthermore, as previously stated, the Proposed Development does not include suitable

habitat for Whooper Swans, therefore they would not have begun their flight within the

Proposed Development. It therefore follows that a Whooper Swan flight between the

Blackwater Callows SPA and the nearest suitable habitat (the River Blackwater) that crossed

the Proposed Development would be considerably further than 5km (core foraging range)

and exceed 9.9km (separation distance). Such a flight is thus even less likely.

15. In summary, as detailed in the comprehensive suite of documents which informed

the Proposed Development and the Board’s Decision, the evidence for a commuting corridor

between the Proposed Development and the Blackwater Callows SPA can be excluded

beyond reasonable scientific doubt, based on the objective information of surveys and the

likely commuting distance of the species. The conclusions of the AA Screening are therefore

entirely justified. The Applicant has adduced no evidence from a suitably qualified expert to

support any of the contentions advanced – which said contentions, respectfully, are devoid

of any scientific merit.

16. Notwithstanding the above, while no pathway to significant effect has been

identified, in line with best practice and following a precautionary approach, a comprehensive

programme of operational phase surveys is proposed in the EIAR to monitor for interactions

between the Proposed Development and the local avian community. Please refer to EIAR

Appendix 8-7 for further details. The programme of works will monitor parameters

associated with collision risk, displacement/barrier effects, and habituation during the

lifetime of the project. The results of this monitoring will be reported to the Planning

Authority following each monitoring year and will include recommendations that may inform

additional mitigation if required.

17. In the circumstances, it is my professional opinion that the Applicant’s contention as

to AA Screening are without substance.”

126. The original birds directive, directive 79/409/EEC, was enacted in 1979. We will come to

the current iteration later.

127. Article 6 of the habitats directive provides:

“Article 6

1. For special areas of conservation, Member States shall establish the necessary

conservation measures involving, if need be, appropriate management plans specifically

designed for the sites or integrated into other development plans, and appropriate statutory,

administrative or contractual measures which correspond to the ecological requirements of

the natural habitat types in Annex I and the species in Annex II present on the sites.

2. Member States shall take appropriate steps to avoid, in the special areas of conservation,

the deterioration of natural habitats and the habitats of species as well as disturbance of the

species for which the areas have been designated, in so far as such disturbance could be

significant in relation to the objectives of this Directive.

3. Any plan or project not directly connected with or necessary to the management of the

site but likely to have a significant effect thereon, either individually or in combination with

other plans or projects, shall be subject to appropriate assessment of its implications for the

site in view of the site's conservation objectives. In the light of the conclusions of the

assessment of the implications for the site and subject to the provisions of paragraph 4, the

competent national authorities shall agree to the plan or project only after having

ascertained that it will not adversely affect the integrity of the site concerned and, if

appropriate, after having obtained the opinion of the general public.

4. If, in spite of a negative assessment of the implications for the site and in the absence

of alternative solutions, a plan or project must nevertheless be carried out for imperative

reasons of overriding public interest, including those of a social or economic nature, the

Member State shall take all compensatory measures necessary to ensure that the overall

coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory

measures adopted.

Where the site concerned hosts a priority natural habitat type and/or a priority species, the

only considerations which may be raised are those relating to human health or public safety,

to beneficial consequences of primary importance for the environment or, further to an

opinion from the Commission, to other imperative reasons of overriding public interest.”

128. Article 7 of the habitats directive provides:

“Article 7

Obligations arising under Article 6 (2), (3) and (4) of this Directive shall replace any

obligations arising under the first sentence of Article 4 (4) of Directive 79/409/EEC in respect

of areas classified pursuant to Article 4 (1) or similarly recognized under Article 4 (2) thereof,

as from the date of implementation of this Directive or the date of classification or recognition

by a Member State under Directive 79/409/EEC, where the latter date is later.”

129. The current birds directive was enacted in 2009: directive 2009/147/EC. Articles 3 and 4 of

the birds directive provide:

“Article 3

1. In the light of the requirements referred to in Article 2, Member States shall take the

requisite measures to preserve, maintain or re-establish a sufficient diversity and area of

habitats for all the species of birds referred to in Article 1.

2. The preservation, maintenance and re-establishment of biotopes and habitats shall

include primarily the following measures:

(a) creation of protected areas;

(b) upkeep and management in accordance with the ecological needs of habitats inside and

outside the protected zones;

(c) re-establishment of destroyed biotopes;

(d) creation of biotopes.

Article 4

1. The species mentioned in Annex I shall be the subject of special conservation measures

concerning their habitat in order to ensure their survival and reproduction in their area of

distribution.

In this connection, account shall be taken of:

(a) species in danger of extinction;

(b) species vulnerable to specific changes in their habitat;

(c) species considered rare because of small populations or restricted local distribution;

(d) other species requiring particular attention for reasons of the specific nature of their

habitat.

Trends and variations in population levels shall be taken into account as a background for

evaluations.

Member States shall classify in particular the most suitable territories in number and size as

special protection areas for the conservation of these species in the geographical sea and

land area where this Directive applies.

2. Member States shall take similar measures for regularly occurring migratory species not

listed in Annex I, bearing in mind their need for protection in the geographical sea and land

area where this Directive applies, as regards their breeding, moulting and wintering areas

and staging posts along their migration routes. To this end, Member States shall pay

particular attention to the protection of wetlands and particularly to wetlands of international

importance.

3. Member States shall send the Commission all relevant information so that it may take

appropriate initiatives with a view to the coordination necessary to ensure that the areas

provided for in paragraphs 1 and 2 form a coherent whole which meets the protection

requirements of these species in the geographical sea and land area where this Directive

applies.

4. In respect of the protection areas referred to in paragraphs 1 and 2, Member States

shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances

affecting the birds, in so far as these would be significant having regard to the objectives of

this Article. Outside these protection areas, Member States shall also strive to avoid

pollution or deterioration of habitats.”

130. Article 26 of the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I.

No. 477 of 2011) provides:

“Conservation objectives and measures to be undertaken by the Minister

26. (1) The Minister shall exercise his or her functions relating to nature conservation so as

to secure compliance with the requirements of the Habitats Directive and the Birds Directive.

(2) The Minister shall establish such particular conservation objectives as he or she, from

time to time, considers necessary to achieve the maintenance of the habitat types or species

in respect of which a site has been identified as a European Site at favourable conservation

status or their restoration to such favourable status.

(3) The Minister may, where he or she considers it would contribute to the achievement of

the objective of Article 3(1) of the Habitats Directive, namely to enable the natural habitat

types listed in Annex I to that Directive and the habitats of the species listed in Annex II to

that Directive to be maintained at or, where appropriate, restored to a favourable

conservation status in their natural range, establish the conservation or restoration of such

a habitat type or the habitat of such a species as a conservation objective of a site.

(4) The Minister shall, having established conservation objectives under paragraph (2) or

(3) or identified under subparagraph (7)(b) one or more additional bird species for inclusion

in the conservation objectives of the site, notify the bodies and persons referred to in

Regulations 16(6) and 16(7) providing those bodies and persons, within a reasonable period,

with a statement of the updated conservation objectives of the site concerned, and shall

publish them on the Department’s website.

(5) The Minister shall establish the conservation measures which he or she considers

necessary, in respect of special areas of conservation designated under Regulation 14

including, if need be, management plans either specifically designed for the sites or

integrated into appropriate plans.

(6) The Minister shall establish the administrative or contractual measures which correspond

to the ecological requirements of the natural habitat types in Annex I to the Habitats

Directive and the species in Annex II to that Directive present on the sites including, but not

limited to, management agreements under Regulation 24, threat response plans under

Regulation 39 and administrative agreements under Regulation 40.

(7) The Minister may, for the purposes of the Birds Directive—

(a) establish conservation measures which he or she from time to time considers

necessary, in respect of special protection areas designated under Regulation 18

including, if need be, management plans either specifically designed for the sites or

integrated into appropriate plans,

(b) identify additional species referred to in Article 4(1) and 4(2) of the Birds

Directive for inclusion in the conservation objectives of the site, and

(c) establish in relation to special protection areas the administrative or contractual

measures which he or she considers correspond to the ecological requirements of

the species in Annex I to the Birds Directive and of the regularly occurring migratory

species not in Annex I to the Birds Directive present on the sites.

(8) In relation to the exercise of his or her functions under this Regulation, the Minister may

consult with such persons as he or she considers appropriate.”

131. Article 2(1) defines “European site”:

“‘European Site’ means—

(a) a candidate site of Community importance,

(b) a site of Community importance,

(c) a candidate special area of conservation,

(d) a special area of conservation,

(e) a candidate special protection area, or

(f) a special protection area;”

132. In the judgment of 7 December 2000, Commission v France, C-374/98, European Court

Reports 2000 I-10799, ECLI:EU:C:2000:670 the CJEU said at para. 26:

“It follows from the general scheme of Article 4 of the birds directive that, where a given

area fulfils the criteria for classification as an SPA, it must be made the subject of special

conservation measures capable of ensuring, in particular, the survival and reproduction of

the bird species mentioned in Annex I to that directive.”

133. Conservation objectives did not need to be species-specific however (paras. 20-22).

134. In the judgment of 29 June 2023, Commission v Ireland (Protection des zones spéciales de

conservation), C-444/21, ECLI:EU:C:2023:524 the CJEU concluded that it inter alia:

“1. Declares that, by failing to designate as special areas of conservation, as soon as

possible and within six years at most, 217 of the 423 sites of Community importance which

were included on the list established by Commission Decision 2004/813/EC of 7 December

2004 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community

importance for the Atlantic biogeographical region, updated by Commission Decision

2008/23/EC of 12 November 2007 adopting, pursuant to Council Directive 92/43/EEC, a first

updated list of sites of Community importance for the Atlantic biogeographical region and by

Commission Decision 2009/96/EC of 12 December 2008 adopting, pursuant to Council

Directive 92/43/EEC, a second updated list of sites of Community importance for the Atlantic

biogeographical region, Ireland has failed to fulfil its obligations under Article 4(4) of Council

Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild

fauna and flora, as amended by Council Directive 2013/17/EU of 13 May 2013;

2. Declares that, by failing to define detailed site-specific conservation objectives for 140

of the 423 sites of Community importance referred to in point 1 of the operative part, Ireland

has failed to fulfil its obligations under Article 4(4) of Directive 92/43, as amended by

Directive 2013/17;

3. Declares that, by failing to adopt the necessary conservation measures which

correspond to the ecological requirements of the natural habitat types referred to in Annex

I and the species referred to in Annex II to Directive 92/43, as amended by Directive

2013/17, present on the 423 sites of Community importance referred to in point 1 of the

operative part, Ireland has failed to fulfil its obligations under Article 6(1) of Directive 92/43,

as amended;”

135. In Power v. An Bord Pleanála (No. 1) [2024] IEHC 108 (Unreported, High Court, 28th

February 2024), Holland J. rejected a challenge to a permission based on a lack of conservation

objectives.

136. In Power v. An Bord Pleanála (No. 2) [2024] IEHC 247 (Unreported, High Court, 1st May

2024), Holland J. granted leave to appeal certifying the following question:

“Are valid conservation objectives for a Special Protection Area a pre-requisite to the Board’s

jurisdiction to carry out a valid Appropriate Assessment under Article 6(3) Habitats Directive

and thus grant planning permission?”

137. The question referred to the CJEU by the Court of Appeal in Power v. An Bord Pleanála [2024]

IECA 295 (Unreported, Court of Appeal, Meenan, O’Moore and Hyland JJ., 5th December 2024) was:

“Are valid conservation objectives for a Special Protection Area a pre-requisite to the

competent authority’s jurisdiction to carry out a valid appropriate assessment under Article

6(3) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and

flora as amended (the ‘Habitats Directive’) when considering an application for a grant of

development consent?”

138. This has now been registered as C-27/25 – Knocknamona.

139. The question only refers to the lack of conservation objectives, not conservation measures.

140. The certified question is determinative of the jurisdiction of the Court of Appeal and thus one

thing that follows is that the CJEU reference is confined to the context of art. 6(3) AA and not

screening.

141. The primary difference with the Power case is outlined by the board (submissions para. 62)

as follows:

“Power concerns whether valid site-specific conservation objectives (‘SSCOs’) are a

jurisdictional pre-requisite to carrying out Appropriate Assessment; whereas the issue which

arises in the present case is therefore whether SSCOs are a jurisdictional requirement to

carrying out screening for Appropriate Assessment.

142. In Friends of Ardee Bog v. An Bord Pleanála [2024] IEHC 292 (Unreported, High Court, 14th

May 2024), O’Regan J. rejected a challenge to a screening decision where conservation objectives

had not been defined, although she did grant a declaration as follows:

“A declaration that prior to the publication of the Stabannan and Braganstown conservation

objectives, the second and third named respondents failed to have in place quite specific

conservation objectives for the Stabannan Braganstown SPA, contrary to its obligations

under EU law.”

143. She refused leave to appeal in Friends of the Ardee Bog v. An Bord Pleanála [2024] IEHC

634 (Unreported, High Court, 5th November 2024) on the ground that the issue wasn’t properly

pleaded.

144. In Friends of the Ardee Bog v. An Bord Pleanála [2025] IESCDET 29 (Dunne, Woulfe and

Hogan JJ., 21st February 2025), the Supreme Court adjourned to an oral hearing an application for

leave to appeal based on lack of conservation objectives as a jurisdictional obstacle at the screening

stage (it having been contested that this point was properly pleaded).

145. The Supreme Court then gave judgment Friends of Ardee Bog v. An Bord Pleanála [2025]

IESC 13 (Unreported, Supreme Court, Hogan J., 25th March 2025) adjourning the matter pending

Power.

146. In terms of where that leaves us, I need to first of all address the State’s willingness to

concede a declaration.

Form of the conceded declaration – core ground 7

147. The declaration made in Power was:

“A Declaration that the Second and or Third and Fourth Respondents failed to fulfil their

obligations under Articles 3, 4(1) and 4(2) Birds Directive and Article 6 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’), as implemented by SI 477 of 2011 and in particular Article

26 thereof, by failing to establish the necessary site specific conservation objectives and

conservation measures in the Blackwater Callows Special Protection Area.”

148. Following that declaration, the State did establish site specific conservation objectives for

the SPA concerned but didn’t establish conservation measures – that is an ongoing problem that has

persisted over a year since a declaration to that effect was made. This is a sub-optimal situation.

149. The State offered a declaration here (presumably because the proceedings pre-dated the

substantive decision in Power) in the following form:

“1. A Declaration that the Second and or Third and Fourth Respondents failed to fulfil

their obligations under Articles 3, 4(1) and 4(2) Birds Directive and Article 6 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’), as implemented by SI 477 of 2011 and in particular

Article 26 thereof, by failing, as of the date that the decision of the Board under challenge

was made, to have in place the necessary site specific conservation objectives and

conservation measures in the Blackwater Callows Special Protection Area.”

150. The problem with that wording is that it doesn’t acknowledge that the breach in relation to

conservation measures is ongoing.

151. The State then suggested an alternative declaration:

“A Declaration that the Second and or Third and Fourth Respondents failed to fulfil their

obligations under Articles 3, 4(1) and 4(2) Birds Directive and Article 6 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’), as implemented by SI 477 of 2011 and in particular Article

26 thereof, by failing, before 26 March 2024, when the necessary site specific conservation

objectives were made, to have in place those objectives, and failing to have the necessary

conservation measures in the Blackwater Callows Special Protection Area.”

152. Following suggestions from the applicant (the points were that the wording suggested

endorsement of the measures and the wording was also wholly in the past tense) the text was

amended as follows:

“A Declaration that the Second and or Third and Fourth Respondents (a) failed to fulfil their

obligations under Articles 3, 4(1) and 4(2) Birds Directive and Article 6 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’), as implemented by SI 477 of 2011 and in particular Article

26 thereof, by failing, before 26 March 2024, when site specific conservation objectives were

made (without prejudice to any argument by the applicant as to the sufficiency of such

objectives), to have in place those objectives in the Blackwater Callows Special Protection

Area, and (b) have not put in place the necessary conservation measures in the Blackwater

Callows Special Protection Area.”

153. As to costs of this point, the State offered a declaration on 7th February 2025, so a similar

approach to costs as applied in relation to the board should be taken here.

The remaining issue – a further declaration or certiorari?

154. In Ardee Bog, the critical distinction between screening and assessment didn’t get much

attention because when the court decided to grant leave to appeal it also went on to adjourn the

matter, observing that the question there was the subject of a reference about “what in effect is this

very point” (para. 18) in Power. That was merely an observation, not a finding, still less a binding

finding. Paragraph 1 of the judgment makes this clear (emphasis added): “this judgment concerns

the single question as to whether this Court should grant the applicant leave to appeal

from a decision of the High Court pursuant to Article 34.5.4⁰ of the Constitution”. That’s the only

question being decided. Anything else is just commentary. Indeed the more elaborate comment

that “the question posed in the Article 267 reference in that case is essentially the same one as is

posed here in the present case” (para. 21) appears under the heading of “Some general

observations” (even acknowledging that para. 18 falls under the prior heading of “The case against

the Board”). If that comment was, contrary to my view, a finding, it was only a preliminary finding

without detailed or possibly any focused argument on whether the issue was in effect the very point

in Power, so again can’t properly be viewed as binding in a context where one has now had the more

detailed argument.

155. While my first reaction to the issue was also, if I may be allowed to say so, that it might be

covered by Power, and while obviously even by-the-way commentary by appellate courts is

something that commands respectful attention, I have now been further enlightened by two sets of

detailed written submissions in two cases, full oral submissions in one case and a couple of top-up

further discussions, and what one can now say with as much certainty as a trial court can ever aspire

to, is that the issue of the relevance of lack of objectives at the screening stage (the context here

and in Ardee Bog) is different from the assessment stage which was the issue in the Power case. It

is not in effect the very point in Power – it is in reality a different albeit somewhat related point.

156. The language of art. 6(1) of the habitats directive requires two steps. Firstly a determination

as to whether a given site is capable of being affected at all by the project. And secondly an

assessment of the effects by reference to conservation objectives. The first process typically

involves screening out faraway sites where, for example, there is no pathway for adverse impacts.

A zone of influence of the order of around 15 km is often adopted whereby sites within that are

screened against the threshold question of whether there could in principle be a situation capable of

giving rise to impacts.

157. It would be very easy and is very tempting to simply take the line of least resistance and

refer all issues in this case to the CJEU, keeping certiorari open. But ultimately that would be

illogical, inappropriate and unfair to the developer for one very simple reason – on the facts and

the evidence in this particular case, particularly Mr Cregg’s affidavit recited above, the question

of impacts on European sites that warrant moving to Stage 2 assessment simply can’t be affected

by the lack of conservation objectives.

158. To put it another way, even if there was some lacuna – even a “jurisdictional” lacuna – in

the preconditions for screening, that lacuna can’t make any difference. Hence the error was

harmless and should not be a basis for certiorari, or if needs be, discretion needs to be exercised

against such a relief. But such an error could be a basis for a declaration, so a reference could be

justified in relation to that relief. The logic of that approach is consistent with the idea of refusing

certiorari if the answer to the reference wouldn’t make any difference to that relief on the facts and

pleadings, but referring something relevant to a declaration, that was upheld in Hellfire Massey v.

An Bord Pleanála [2022] IESC 38, [2024] 1 I.R. 386 (O’Donnell J.). Not an exact analogy but the

same principle arises – if we can exclude a reasonable possibility that the answer to the reference

would require certiorari, then we can dismiss certiorari at this stage. And we can exclude any such

reasonable possibility, in the light of the clear, unambiguous and uncontested evidence in this case

that the lack of objectives, and thus also for what it’s worth of measures, made no difference.

159. The relevant further declaration beyond the conceded one (bearing in mind that the applicant

appropriately pleads general declaratory relief at relief 2) would be along the lines that:

“The board’s determination that the project was not likely to have a significant effect on the

Blackwater Callows Special Protection Area, either individually or in combination with other

plans or projects, ought to have been carried out by reference to conservation objectives

established for that site.”

160. In other words, if the applicant proves to be correct on this point, screening by reference to

objectives ought to have happened, but the fact that it didn’t happen in this particular case doesn’t

have the consequence that the decision should be quashed.

161. The relevant question to be referred would be along the following lines:

“Does Article 6(3) of Directive 92/43 as applied to Directive 2009/147 by Article

7 of the former Directive have the effect that a determination by a competent

authority of a Member State as to whether or not a plan or project not directly

connected with or necessary to the management of any site for the purposes of

Directive 2009/147 is likely to have a significant effect on any such site, either

individually or in combination with other plans or projects, ought to be carried out

by reference to conservation objectives and/or measures established for any site

concerned and/or in particular for any site which is proposed to be screened out

of consideration as one unlikely to be significantly so affected?”

162. I did consider omitting reference to measures, which was pleaded by the applicant albeit

that he didn’t seem to be pursuing it, but on a careful reading of the transcript I wasn’t totally

satisfied that the applicant had completely and utterly dropped this point. The transcript bristles

with opaque qualifications and caveats that didn’t seem important when uttered, as well as careful

circumlocutory language which didn’t make much of an impression at the time but which on paper

could be enough to allow a future court to let this point back in to the case – so we may as well deal

with it now one way or the other. Calling the applicant back in a further futile effort to get a straight

Yes or No would amount to a fool’s errand on my part and a pointless attempt to pick up mercury

with a fork.

163. The reason why certiorari can be ruled out here at this stage is fairly straightforward. Even

if a domestic competent authority “lacks jurisdiction” to conduct screening in the absence of

objectives, jurisdiction is not a magic spell to conjure up certiorari out of nothing. We still have to

ask if the error would have made any difference.

164. For reasons explained further below, the general principle of Union law of proportionality

does not have the effect of precluding a national court from refusing to recognise impairment of a

right or obligation for the purposes of the foregoing provisions if it is established to the satisfaction

of the national court, having regard to the circumstances of the case, that the contested decision

would not have been different without the defect invoked by the applicant, on the basis that the

court of law or body hearing the action does not in any way make the burden of proof fall on the

applicant and makes its ruling, where appropriate, on the basis of the evidence provided by the

developer or the competent authorities and, more generally, on the basis of all the documents

submitted to it, taking into account, inter alia, the seriousness of the defect invoked and ascertaining,

in particular, whether that defect has deprived the public concerned of one of the guarantees

introduced with a view to allowing that public to have access to information and to be empowered

to participate in decision-making. I did consider referring that question, but having considered it,

there is nothing to refer – that’s an established point. It would in short be illogical where the doctrine

of harmless error is clear and settled.

165. There is of course a reinforcing factor here – the general principle of Union law of

proportionality cannot preclude a national court from refusing to recognise impairment of a right or

obligation for the purposes of the foregoing provisions if it is established to the satisfaction of the

national court, having regard to the circumstances of the case, that the extent of the failure by the

member state concerned to establish conservation objectives and/or conservation measures is so

widespread in relation to sites generally such that development consent decision-making generally

could otherwise be rendered impracticable on a general basis in the member state concerned. I

considered referring that as well but I don’t think that can realistically be a matter of doubt – the

EU treaties are not a suicide pact and don’t require administrative chaos to break out in member

states or oblige their decision-taking to come to a juddering halt.

166. The settled law in relation to harmless error and discretion can be summarised as follows:

(i) A decision should not be quashed for error (including in application of EU

law) if the error was harmless and did not materially affect the result: Walton v.

Scottish Ministers [2012] UKSC 44, [2013] P.T.S.R. 51; judgment of 7 November

2013, Gemeinde Altrip and Others v Land Rheinland-Pfalz, C-72/12,

ECLI:EU:C:2013:712; R (Champion) v. North Norfolk District Council [2015] UKSC

52, [2015] 1 W.L.R. 3710; Canterbury City Council v. Secretary of State for Housing

Communities and Local Government [2019] EWHC 1211 (Admin.), [2019] 5

W.L.U.K. 225; R. (Hudson) v. Windsor and Maidenhead Royal Borough Council

[2021] EWCA Civ 592, [2021] 1 W.L.R. 5588 (Coulson L.J. at §§77-78); Sliabh

Luachra Against Ballydesmond Windfarm Committee v. An Bord Pleanála [2019]

IEHC 888, [2019] 12 JIC 2017 (Unreported, High Court, McDonald J., 20th December

2019); opinion of Advocate General Bobek delivered on 14 January 2021, UH v An

tAire Talmhaíochta Bia agus Mara and Others, ECLI:EU:C:2021:14; Reid v. An Bord

Pleanála (No. 2) [2021] IEHC 362, [2021] 10 JIC 0606 (Unreported, High Court, 6th

October 2021) at §53; Heather Hill Management Company CLG v. An Bord Pleanála

[2022] IEHC 146, [2022] 3 JIC 1603 (Unreported, High Court, Holland J., 16th March

2022) at §257 et seq. and §326(d) and (e); Concerned Residents of Treascon and

Clondoolusk v. An Bord Pleanála [2022] IEHC 700, [2022] 12 JIC 1609 (Unreported,

High Court, 16th December 2022) at §80; Toole v. Minister for Housing (No. 6)

[2023] IEHC 592, [2023] 10 JIC 3102 (Unreported, High Court, 31st October 2023)

at §39; Eco Advocacy v. An Bord Pleanála [2025] IEHC 15 (Unreported, High Court,

15th January 2025); and non-precedentially, Carrownagowan Concern Group v. An

Bord Pleanála [2025] IESCDET 9 (Charleton, Collins and Donnelly JJ., 27th January

2025). The term “procedural defect” in Altrip has an autonomous EU meaning which

is not limited to narrow technical issues that do not include errors in relation to the

facts – the phrase covers any defects committed in the impugned procedure: see

for example the opinion of Advocate General Cruz Villalón delivered on 20 June 2013

in Altrip, ECLI:EU:C:2013:422 at paras. 44 and 45. In Altrip the law in relation to

environmental impact assessment was viewed as procedural. In any event there is

no logical or rational basis to limit the Altrip doctrine to particular kinds of harmless

error.

(ii) The determination of whether the error would have affected the result is one for the

court, which can act on evidence in the proceedings from an interested

party such as a developer – the CJEU says this expressly in Altrip para. 53. While

non-precedential, this point was seen as not raising doubt by the Supreme Court in

Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 (Charleton,

Collins and Donnelly JJ., 27th January 2025), para. 21: “Altrip – which was

concerned with the EIA Directive - clearly indicates that not every ‘defect’ will

necessarily have consequences that can possibly affect the purport of a decision to

approve a development: §49. While the defect in Altrip was characterised as

‘procedural’, the complaint appears to have been that the EIA carried out before

development consent was given was ‘inadequate’ (§16). Altrip also makes it clear

that in this context a court may rely on evidence provided by the developer. The

fundamental point in Altrip was that a reviewing court might properly conclude that

an error was ‘harmless’ without having to send the decision back to the original

decision-taker”. Accepting such evidence and making a finding of harmlessness is

not a substitution of the court’s views for those of the decision-taker, a standing in

the latter’s shoes, a trespass onto forbidden territory, or any other alarmist cliché:

Altrip; R. (on the application of Champion) v. North Norfolk District Council [2015]

UKSC 52, [2015] 1 W.L.R. 3170; Canterbury City Council v. Secretary of State for

Housing Communities and Local Government [2019] EWHC 1211 (Admin.), [2019]

5 W.L.U.K. 225; Carrownagowan Concern Group v. An Bord Pleanála (No. 3) [2024]

IEHC 549 (Unreported, High Court, 23rd September 2024) at §52. There could not

be a rational and sensible system if there was some kind of exclusionary rule that

prevented the court from receiving developer’s evidence. Such a rule would be

inconsistent with the Supreme Court’s finding in Ballyboden Tidy Towns Group v. An

Bord Pleanála & Ors [2024] IESC 4 (Unreported, Supreme Court, Donnelly J., 22nd

February 2024) (O’Donnell C.J., Woulfe, Hogan and Collins JJ. concurring) that a

developer can defend a permission even if the decision-taker does not. Indeed

generally speaking it would trivialise judicial review and be an exercise in self-

indulgence to quash decisions because of things that make no difference, in the

absence of a mandatory provision that compels such an approach.

(iii) Whether the test should be set at the level of the error being unlikely to make a

difference or one being satisfied that it would not make a difference may be semantic

in most cases other than the borderline. A working approach is to phrase it by saying

that the court should exclude a reasonable possibility that the error would

have made a difference to the actual outcome. Obviously an error would

definitionally make a difference to the wording of the reasoning but that can’t be a

barrier to the application of the doctrine because the doctrine would be meaningless

on that impossible condition. The CJEU puts the matter in terms of excluding doubt

(Altrip para. 53: “impairment of a right cannot be excluded unless, in the light of the

condition of causality, the court of law or body covered by that article is in a position

to take the view, without in any way making the burden of proof fall on the applicant,

but by relying, where appropriate, on the evidence provided by the developer or the

competent authorities and, more generally, on the case-file documents submitted to

that court or body, that the contested decision would not have been different without

the procedural defect invoked by that applicant”) which means reasonable doubt

because exclusion of all doubt is an impossibility. AA does not require the decision-

taker to disprove “any effect whatsoever” even those having “no appreciable effect”

or “hypothetical risk”: opinion of Advocate General Kokott of 29 January 2004 in

Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging

tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en

Visserij, ECLI:EU:C:2004:60, paras. 102-106; judgment of 7 November 2018,

Holohan v An Bord Pleanála, C-461/17, ECLI:EU:C:2018:883 at paras. 33-37;

Holland J. in Heather Hill Management Company CLG v. An Bord Pleanála [2022]

IEHC 146, [2022] 3 JIC 1603 (Unreported, High Court, 16th March 2022), citing R

Mynydd Y Gwynt Ltd v The Secretary of State for Business, Energy and Industrial

Strategy [2016] EWHC 2581 (Admin), [2016] 10 W.L.U.K. 396, [2017] Env. L.R. 14

(at para. 259). Absence of reasonable doubt therefore does not mean “absolute

certainty” (paras. 44, 58, 59, and 61 of the CJEU's judgment of 7 September 2004,

Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging

tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en

Visserij, C-127/02, ECLI:EU:C:2004:482 (Grand Chamber) and paras. 102 to 108 of

the Advocate General's opinion in Waddenzee, and the judgment in Holohan, at

paras. 33-37, Lord Carnwath in R. (on the application of Champion) v. North Norfolk

District Council [2015] UKSC 52, [2015] 1 W.L.R. 3170 at para. 41). Insofar as

some caselaw refers to whether it is “conceivable” that the decision could have been

different (West Cork Bar Association v. Courts Service [2016] IEHC 388, [2017] 2

I.L.R.M. 281, [2016] 7 JIC 0802 (Noonan J.); Baile Eamoinn Teoranta v. An Bord

Pleanála [2020] IEHC 642, [2020] 12 JIC 0405 (Unreported, High Court, Barr J., 4th

December 2020)) those statements were fact-specific. It is not the law that any

conceivable possibility of difference, no matter how tenuous, theoretical or

unreasonable, would be deadly to a permission. That can’t be the law in any

workable sense – virtually anything is “conceivable”, but not everything is

reasonable.

(iv) An applicant has the burden to establish the existence of error, but the successful

demonstration of error shifts the onus. Therefore the onus of proof that a

demonstrated error was harmless lies not on an applicant but on the party

asserting harmlessness (Altrip para. 53). Hence if a developer’s affidavit

asserting harmlessness is properly controverted, that issue should be resolved in

favour of the applicant in the absence of cross-examination, applying RAS Medical

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 (Clarke C.J.) (O’Donnell, MacMenamin, Dunne and

Finlay Geoghegan JJ. concurring).

(v) The determination of whether a particular error would have made a difference must

also be carried out by reference to the totality of the material before the decision-

taker, considered as a whole, as well as to such further material as the court may

receive in the proceedings: Carrownagowan v. An Bord Pleanála (No. 3) [2024] IEHC

549 (Unreported, High Court, 23rd September 2024), para. 31.

(vi) The question of whether public participation was materially compromised is

also relevant: Altrip.

(vii) Where by contrast the error would have had a material effect on the outcome, any

breach of EU law should normally be remedied by certiorari. Any after-the-

event assessment which would allow a permission to stand should only be permitted

in exceptional circumstances: the judgment of 12 November 2019, Commission v

Ireland (Derrybrien Wind Farm), C-261/18, ECLI:EU:C:2019:955 (Grand Chamber).

(viii) Where the error relates to purely domestic law, then even if it would have had

a material effect, the court has a wider discretion although is not fully at large:

Independent Newspapers v. IA [2020] IECA 19 (Unreported, Court of Appeal, Murray

J. (Birmingham P. and Whelan J. concurring), 22nd January 2020).

167. Assuming that objectives and/or measures need to be established prior to screening, it is

thus well-established that EU law does not require decisions to be quashed about errors that make

no difference. On the facts here and the affidavit evidence on behalf of the opposing parties I am

satisfied that they have discharged the burden to show, beyond reasonable possibility to the

contrary, that the decision would have been the same whatever conservation objectives and

measures were adopted for the SPA concerned. That is because there is not going to be any material

impact on the SPA so it doesn’t matter what the objectives and measures for the SPA are. The lack

of objectives and measures didn’t compromise public participation in some way that would require

the grant of relief, or indeed in any demonstrated meaningful way at all. So even if counterfactually

the applicant has struck gold at the academic level with his innovative theory, it doesn’t get him

anywhere on the facts of the present case.

168. Again, for the record, the board’s submission is correct:

“The national court has jurisdiction to take such an approach having regard to Case C-72/12

Altrip at §49-§54.

The decision in Altrip is reflected in relevant jurisprudence from the domestic Courts in this

jurisdiction and from judgments of the Courts of the United Kingdom: Walton v Scottish

Ministers [2012] UKSC 44; [2013] PTSR 51 at §138-§140 (per Lord Carnwath) and §155-

§156 (per Lord Hope); R. (Gibson) v Harrow DC [2013] EWHC 3449 (Admin) at §39-§40

(per Sales J); West Kensington Estate Tenants and Residents Association v Hammersmith

and Fulham LBC [2013] EWHC 2834 (Admin) at §205-§209 (per Lindblom J); Ashdown

Forest Economic Development Llp v Wealden District Council [2015] EWCA Civ 681 at §52

(per Richards LJ); R (Champion) v North Norfolk District Council and another [2015] UKSC

52, [2015] 1 WLR 3710 at §54-§59 and §62 (per Lord Carnwath); Canterbury City Council

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

(Admin) at §84 (per Dove J ‘it is beyond argument that in cases where there has been a

breach of European environmental law the court retains a discretion not to quash that

decision on the grounds of that illegality’); Regina (Hudson) v. Windsor and Maidenhead RBC

[2021] EWCA Civ 592, [2021] 1 W.L.R. 5588 at §75-§80 (per Coulson LJ – a case in which

the defect was that no AA was carried out at all (see e.g. §2, §62 et seq) and it was accepted

by the competent authority that it ought to have been); Reid v An Bord Pleanála (No.2)

[2021] IEHC 362 at §53 (per Humphreys J); Heather Hill Management Company CLG v An

Bord Pleanála [2022] IEHC 146 at §257 et seq and §326(d) and (e) (per Holland J));

Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2022] IEHC 700 at

§80 (per Humphreys J); Toole v. Minister for Housing (No. 6) [2023] IEHC 592 at §39 (per

Humphreys J); Carrownagowan Concern Group v An Bord Pleanála (No.2) [2024] IEHC 300

at §169-§184 (per Humphreys J); Carrownagowan Concern Group v. An Bord Pleanála

(No.3) [2024] IEHC 549 at §52 (per Humphreys J); and Carrownagowan Concern Group v

An Bord Pleanála [2025] IESCDET 9 at §20, §21 and §25.

Whereas Member States must not make the pursuit of a legal remedy in relation to provisions

arising from EU law and aimed at environmental protection impossible in practice,

excessively difficult or subject to rules less favourable than those governing similar domestic

situations, as regards remedies – which are discretionary in judicial review – same are a

matter for the national court. Further, such a refusal by the national court to recognise

impairment of a right or obligation for the purposes of the foregoing provisions is consistent

with the general principle of Union law of proportionality which, inter alia, requires that acts

of the EU institutions be appropriate for attaining the legitimate objectives pursued by the

legislation at issue and do not exceed the limits of what is necessary in order to achieve

those objectives; that when there is a choice between several appropriate measures,

recourse must be had to the least onerous, and that the disadvantages caused must not be

disproportionate to the aims pursued (see e.g. Case C-358/14 Poland v Parliament and

Council at §78 and the case law cited). Also relevant by analogy is the following passage

from the Opinion of Advocate General Emiliou in Case C-883/19P HSBC Holdings plc and

Others v European Commission at §54 ‘even when the Commission does breach, during the

administrative procedure, some procedural right of an undertaking, it is obvious that the

most appropriate remedy is not always the setting aside of the decision in question. If it is

clear that, despite the breach of the undertaking’s rights, the procedural irregularity at issue

could not have had any effect whatsoever on the outcome of the case, quashing the decision

appears both inappropriate (since it does not remedy the breach that has occurred) and

disproportionate (as the sanction is not commensurate with the error).”

169. Separately, the applicant’s argument simply proves too much, because since half of Irish

sites have no objectives, and none of them have measures, and because all planning decisions by

all councils and the board, and all environmental consents of any kind, require AA screening, then if

the applicant is correct that the lack of objectives or measures precludes screening, lawful

environmental decision-making in the country as a whole must now come to a sudden and total

juddering halt for whatever period of time it takes to rectify things in relation to hundreds of sites,

no matter how urgent and important such decisions may be. As the board points out, even

establishing a zone of influence involves implicitly screening out any sites beyond that, so if there is

even a single site anywhere in the country (or anywhere in the EU – since CJEU caselaw is clear that

transboundary impacts need to be considered) that lacks conservation objectives or measures then

screening becomes legally impossible anywhere for any and every project. Since lack of screening

is a “jurisdictional” bar to development consent, then development consent by all competent

authorities – all councils, the board, the Environmental Protection Agency (EPA), Ministers, and so

on and on – becomes unlawful overnight for however many months and years as it takes to rectify

things. Contrary to the applicant’s approach, what should govern this situation is not “rigid abstract

logic” (per Murray C.J. in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 I.R. 88,

[2006] 2 I.L.R.M. 48 at para. 41) but “[t]he overriding requirements of an ordered society” (per

O’Higgins C.J. in de Burca v. Attorney General [1976] I.R. 38 at 63).

170. Of course this also illustrates that slapping the label “jurisdictional” on a problem can be

misleading because it lulls applicants into a false sense of security – they don’t need to put in any

work, make any submissions or do much of anything, they can sit back and await certiorari and

costs. But not all “jurisdictional” errors require certiorari – certainly not if they don’t make a

difference to anything.

171. The board’s submission is, again, worth recording:

“The national court is entitled to refuse to recognise impairment of a right or obligation for

the purposes of the foregoing provisions in such circumstances (i.e. where the extent of the

failure of the member state is so widespread it could render decision-making impractical on

a general basis in that member state). This is particularly so where, in Case C-444/21

Commission v. Ireland the CJEU rejected an argument that Ireland had engaged in a general

and systemic breach of the Habitats Directive (see §§163 – 175 of the judgment).

Such a refusal by the national court is consistent with the general principle of Union law of

proportionality. If the outcome of European law (in this case by reason of a purported

jurisdictional bar to carrying out AA screening) would otherwise be the rendering of

development consent impractical in a Member State on a general basis (and the Board

contends that it clearly would in the current circumstances in Ireland), that is not the

appropriate outcome as it is disproportionate (in particular in circumstances where, as here,

the contested decisions would not have been different without the procedural defect invoked

and where the evidence demonstrates that the substance and/or purpose of the protection

which the Birds Directive and Habitats Directive are aimed at achieving is not undermined)

and where the relevant legislation (the Habitats Directive) cannot be interpreted to produce

‘legislative overkill’ (per the Opinion of Advocate General Sharpston in Case C-258/11

Sweetman at §48) and likewise cannot and/or should not be interpreted to produce absolute

administrative and/or procedural standstill at a state-wide level. Such an outcome is simply

not required to achieve the aims of those Directives.”

172. For these reasons, core ground 7 must fail as a basis for certiorari. The problem is that on

the facts, the claim for certiorari is doomed in any event due to it being established by the opposing

parties, who have discharged the onus of proof on this issue, that there is a clear lack of any

reasonable possibility of any impact whatever on the SPA on the evidence here. Hence the point

doesn’t make any difference.

173. In making the reference for the purposes of the declaration I will refer to the order of the

President of the Court of 20th March 2025, C-27/25 Knocknamona, in which the application of the

expedited procedure was refused but it was stated that the CJEU will give the case priority over

others, pursuant to art. 53(3) of the Rules of Procedure. At the risk of stating the obvious to the

CJEU, I am inclined to raise the possibility of joining the case with Power, albeit that the CJEU may

consider that of their own motion anyway.

174. The reference issue will be dealt with in a separate formal judgment for reference. In the

meantime standard Eco Advocacy-type directions will apply as outlined below.

Summary

175. In outline summary, without taking from the more specific terms of this judgment:

(i) Core ground 1 – the applicant has established an error under core ground 1 but this

warrants declaratory relief only.

(ii) Core ground 2 – generally the applicant can’t succeed due to failure to adduce

sufficient evidence that the board’s approach was flawed.

(iii) Core grounds 3, 5 and 6 were dropped.

(iv) Core ground 4 – the EIA argument is without substance on the facts and in particular

fails to account for the fact that cumulative/ in-combination impacts were assessed,

and that this is not a case of project-splitting on the facts.

(v) Core ground 7 – the lack of conservation objectives warrants the conceded

declaratory relief. As regards whether it also warrants certiorari, the answer is no

because on the evidence we can exclude a reasonable possibility of effects on

European sites – so what the conservation objectives of those sites are, or the

conservation measures, doesn’t change that. The residual issue as to whether

objectives/ measures ought in principle to be established prior to screening requires

a reference to the CJEU but only for the purposes of possible additional declaratory

relief.

Order

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

(i) declarations: There be a declaration against the board as follows:

“A declaration that the application for permission for development under section 37E

of the Planning and Development Act 2000 should have been made by the

prospective applicant under sections 37A to 37D.”;

(ii) there be a declaration against the State respondents as follows:

“A Declaration that the Second and/or Third and Fourth Respondents (a) failed to

fulfil their obligations under Articles 3, 4(1) and 4(2) Birds Directive and Article 6 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’), as implemented by S.I. 477 of

2011 and in particular Article 26 thereof, by failing, before 26 March 2024, when site

specific conservation objectives were made (without prejudice to any argument by

the applicant as to the sufficiency of such objectives), to have in place those

objectives in the Blackwater Callows Special Protection Area, and (b) have not put

in place the necessary conservation measures in the Blackwater Callows Special

Protection Area.”;

(iii) dismissal (save in relation to referred matter): the claim for certiorari be

dismissed and the proceedings be otherwise dismissed save in respect of core

ground 7 as a basis for declaratory relief only;

(iv) referral in principle: the identified questions be in principle referred to the CJEU

under art. 267 TFEU in accordance with a judgment for reference to be issued

separately;

(v) CJEU contact sheet: by 2nd May 2025, the parties be required to complete the

CJEU contact sheet set out in guidance notes to Practice Direction HC126 specifying

whether any natural persons referred to wish their names to be anonymised for the

purposes of the CJEU proceedings and judgment, and submit that sheet to the List

Registrar copying the relevant judicial assistant;

(vi) other redactions: by 2nd May 2025, each party be required to advise the List

Registrar as to whether any natural persons mentioned in the judgment for reference

other than the parties in the title (whose positions should be specified in the contact

sheet) wish their names to be anonymised for the purposes of the CJEU proceedings

and judgment;

(vii) papers for CJEU: the parties be required to furnish brief updated proposed answers

to the re-worded question for reference (300 words maximum);

(viii) in the interests of expedition, the applicant to remain as document management

party unless an opposing party wishes to take on such role for the purpose of the

reference only;

(ix) the document management party be required to prepare a draft contents page of

documents for the CJEU and to agree this with the other parties or apply to the court

in default of agreement; this should include:

(a) all relevant pleadings/ affidavits/ exhibits/ other documents; and

(b) all relevant judgments/ orders in the case including the formal order for

reference when perfected and the final judgment for reference when

delivered;

(c) this should not include cases or other authorities, especially where these

are already cited in the judgment for reference;

(d) once the contents page is agreed, it is then the function of the document

management party to prepare electronic versions for the CJEU as follows:

1. all files should be in PDF format not exceeding 30 MB;

2. the judgment for reference should be a single standalone PDF

clearly identified as such; that PDF should be sent in a form (which

should be final but may be unsigned) that preserves the

hyperlinks and not as a scanned picture of the signed version;

3. all other documents should be bundled together in a single PDF

(or more than one if required to comply with the 30MB file size

limit); and

4. the completed form of the contact details of the parties in the

form attached to guidance notes to Practice Direction HC126; and

(e) once prepared, the PDFs should be sent to the List Registrar by email or

file sharing link, and for this purpose parties should not use password

protected file transfers, this process to be completed by 6th May 2025;

(x) request for priority: having regard to the Order of the President of the CJEU of 20

March 2025, C-27/25 Knocknamona, in which the application of the expedited

procedure was refused but it was stated that the CJEU will give the case priority over

others, pursuant to art. 53(3) of the Rules of Procedure, the formal judgment for

reference be phrased to include a request for such priority and/or for the joinder of

the present reference with C-27/25 Knocknamona;

(xi) information for the referring court: once the matter is formally referred, the

parties should liaise to ensure that the referring court is copied with all submissions

including those of member states and EU institutions, and the Advocate General’s

opinion, when permitted to do so by the rules of procedure of the CJEU, and to copy

the referring court with relevant notifications such as regarding the date of any oral

hearing, any opinion of the Advocate General, the date of delivery of the judgment

and the judgment itself;

(xii) costs: the applicant’s costs as between him and the board in relation to core ground

1 be reserved up to 26th July 2024 with no order as to the applicant’s costs on that

issue thereafter other than with liberty to apply for the costs of a single consequential

mention date;

(xiii) the board’s costs as between it and the applicant in relation to core ground 1 be

reserved for the period subsequent to 26th July 2024 subject to the foregoing liberty

to apply with no order as to the board’s costs on that issue for the period prior to

that date;

(xiv) the applicant’s costs as between him and the State respondents in relation to the

conceded declaration under core ground 7 be reserved up to 7th February 2025 with

no order as to the applicant’s costs in relation to a declaration thereafter other than

with liberty to apply for the costs of a single consequential mention date;

(xv) the State respondents’ costs and the applicant’s costs inter se in relation to a

potential further declaration under core ground 7 be reserved;

(xvi) the State respondents’ costs under core ground 7 insofar as relates to the claim for

declaratory relief be reserved for the period subsequent to 7th February 2025

subject to the foregoing liberty to apply with no order as to their costs on that relief

for the period prior to that date;

(xvii) the State respondents’ costs under core ground 7 insofar as relates to the claim for

certiorari be reserved with no order as to the applicant’s costs on that issue;

(xviii) the costs of the opposing parties in relation to the proceedings be otherwise reserved

save insofar as no order as to particular matters is provided for in this order.

(xix) there be no order as to any of the applicant’s costs save insofar as his costs are

reserved in relation to particular matters in this order;

(xx) mention date: the matter be listed for mention on 12th May 2025 to confirm

readiness of the papers;

(xxi) liberty to apply: there be liberty to apply; and

(xxii) perfection of order: in the interests of expedition, the foregoing order be perfected

now in full so that in the event of further procedures regarding the dismissal of

certiorari, those can be put in hand forthwith and need not await the outcome of the

reference.