High Court refers question on Article 6(3) Directive 92/43 interpretation to CJEU regarding wind farm screening.

[2025] IEHC 218

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. 3)

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

Subject-matter of the dispute

1. This request for a preliminary ruling concerns the interpretation of Article 6(3) of Directive

92/43.

2. The request is being made in proceedings concerning a challenge to a 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/. The

development is to include 17 wind turbines within two clusters, a substation and a lithium ion battery

storage facility co-located with the substation. The project relates to renewable energy

infrastructure covered by Article 16(6) of Directive 2018/2001 as amended by Directive 2023/2413.

Insofar as concerns an order quashing the permission, this is being refused by the referring court.

However a question of interpretation of EU law arises in connection with declaratory relief.

Legal context

European Union law

3. Article 3 of Directive 93/43 provides:

“1. A coherent European ecological network of special areas of conservation shall be set up

under the title Natura 2000. This network, composed of sites hosting the natural habitat

types listed in Annex I and habitats of the species listed in Annex II, shall enable the natural

habitat types and the species' habitats concerned to be maintained or, where appropriate,

restored at a favourable conservation status in their natural range.

The Natura 2000 network shall include the special protection areas classified by the Member

States pursuant to Directive 79/409/EEC.

2. Each Member State shall contribute to the creation of Natura 2000 in proportion to the

representation within its territory of the natural habitat types and the habitats of species

referred to in paragraph 1. To that effect each Member State shall designate, in accordance

with Article 4, sites as special areas of conservation taking account of the objectives set out

in paragraph 1.

3. Where they consider it necessary, Member States shall endeavour to improve the

ecological coherence of Natura 2000 by maintaining, and where appropriate developing,

features of the landscape which are of major importance for wild fauna and flora, as referred

to in Article 10.”

4. Article 6 of Directive 93/43 provides:

“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.”

5. Article 7 of the Directive provides:

“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.”

6. Directive 79/409 was replaced by Directive 2009/147. Articles 3 and 4 of the latter 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.”

Domestic law

7. Section 37E of the Planning and Development Act 2000 (the 2000 Act)

(https://revisedacts.lawreform.ie/eli/2000/act/30/section/37E/revised/en/html#:~:text=37E.,resp

ect%20of%20the%20proposed%20development) allows direct applications to An Bord Pleanála (the

board) for development consent for strategic infrastructure development (SID).

8. Blackwater Callows SPA is a site designated for the purposes of Directive 2009/147. It was

provided for by the European Communities (Conservation of Wild Birds (Blackwater Callows Special

Protection Area 004094)) Regulations 2012 (S.I. No. 191 of 2012)

(https://www.irishstatutebook.ie/eli/2012/si/191/made/en/print), which includes the Whooper

Swan (Cygnus cygnus) as a qualifying interest.

9. The European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of

2011) (https://www.irishstatutebook.ie/eli/2011/si/477/made/en/print) transposes the Directives

referred to above. Article 26 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.”

Facts

10. A SID determination letter issued to Innogy Renewables Ireland Limited on 28 May 2020

enabling it to apply directly to the board for permission for a SID development.

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

application for development consent under section 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 appropriate assessment (AA) screening

report and a Natura impact statement (NIS).

12. The nearest European Site to the development 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.

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

the wind farm development under section 37E(4) of the 2000 Act. Similarly, in March 2021, the

Chief Executive of Cork Council also made a report on the wind farm development.

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

Development Applications Unit (formerly NPWS) and Irish Water.

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

applicant.

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

SPA and other sites.

17. On or about 8 April 2022, the board sought further information from Curns. A response was

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

reports.

18. 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.

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

20. 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 23

June 2023.

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

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

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

recommending that planning permission be granted.

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

development.

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

Blackwater Callows SPA.

Procedural history

25. The proceedings were issued on 11 January 2024.

26. In correspondence dated 7 February 2025, it was confirmed that the Minister will consent to

a declaration that the Second and or Third and Fourth Respondents failed to fulfil their obligations

under Articles 3, 4(1) and 4(2) of Directive 2009/147 and Article 6 of Directive 92/43 and transposing

legislation by failing to have in place the necessary site specific conservation objectives and

conservation measures in the Blackwater Callows Special Protection Area.

27. The matter was heard on 4 and 5 March 2025 and then listed for further mention on 25 and

31 March 2025 and 7 April 2025.

28. On 11 April 2025 the referring court found that it can exclude any reasonable possibility that

any failure to consider conservation objectives and/or measures in this case would give rise to effects

on any European site. Hence the referring court has refused an order quashing the development

consent, irrespective of the outcome of the present preliminary reference. However, the referring

court requests the CJEU to address the question set out below for the purpose of deciding whether

or not to grant declaratory relief to the applicant. On 19 May 2025 the present judgment was revised

to incorporate further submissions from the parties.

29. In those circumstances the referring court is staying the balance of the proceedings and

referring the questions below to the Court of Justice for a preliminary ruling.

The referred question

30. The referred question is:

“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, must 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?”

31. The applicant’s proposed answer is Yes. Regarding conservation objectives - the risk of a

significant effect “is deemed to be present where it cannot be ruled out, having regard to the best

scientific knowledge in the field, that the plan or project might affect the conservation objectives of

the site” – Case C-254/19 FIE at 50-51 and case law cited. The relevant assessment cannot be

carried out in the absence of conservation objectives. This is reflected in S.I. No. 477 of 2011 Article

42. The Board suggests the court is asking, in essence, whether it is possible for a competent

authority to conduct screening for AA screening at all in the absence of valid conservation objectives

and/or measures. The applicant’s answer to that question, as regards conservation objectives, is

“No” – AA screening should be carried out in the way the Directive, as interpreted by the CJEU,

requires - rather than in some other way, as was done here. COs should precede the conservation

measures – Case C-116/22 Commission v Germany. Insofar as COs are essential to AA screening,

the absence of CMs compounds rather than creates the problem. However, insofar as it is contended

that AA screening can in principle be performed without COs, the CMs have the potential to inform

the interpretation and application of the COs, and thus should be considered essential to jurisdiction.

32. In replying to this question the applicant also sought to argue that the conservation

objectives ultimately adopted were not consistent with the AA set out in the inspector’s report. This

is an issue that was never pleaded or argued at the substantive hearing and hence is wholly

impermissible at this stage and in any event is irrelevant to the specific relief which is the subject of

the reference.

33. The respondent’s proposed answer is No. It submits that the absence of conservation

objectives and/or measures having been established for a site concerned does not mean or have the

effect that the competent authority cannot carry out an AA screening at all and is not a jurisdictional

bar to the carrying out by a competent authority of an AA screening. There is no textual basis in

Article 6(3) itself or elsewhere in Directive 92/43 for such a jurisdictional bar, nor is there any

contextual basis for inferring the existence of such a jurisdictional bar, nor is there is any purpose

served by reading in the existence of same. Article 6(3) does not contain any reference at all to

conservation measures. As regards conservation objectives, reference to objectives is not made in

the first part of Article 6(3) dealing with the threshold for an appropriate assessment, namely

whether a plan or project would be likely to have a significant effect on any European site. Insofar

as AA screening comprises four steps (per Section 3.1 of Commission Notice (2021/C437/01), such

a jurisdictional bar would needlessly preclude the carrying out of the first three of those steps,

pursuant to which it may be possible to screen the requirement for an AA in or out in a given case

without reference to the conservation objectives for the site concerned. Such a jurisdictional bar

would, for example, unnecessarily deprive the competent authority of competence to exclude at the

screening stage plans or projects that would have no appreciable effect at all on any site concerned,

where any such unaffected site did not have valid conservation objectives. Whether an absence of

conservation objectives affects a competent authority’s ability to carry out screening necessarily falls

to be assessed on a case by case basis. Any conclusion that the competent authority’s ability to

carry out AA screening is affected would have to have an evidential basis. To require a blanket

jurisdictional bar goes far beyond, and is not justified by, the text and purpose of Directive 92/43.

34. The notice party’s proposed answer is No, the absence of conservation objectives does not

deprive the competent authority of jurisdiction to assess whether a project is likely to have a

significant effect on the qualifying interests of the SPA. The taking into account of conservation

objectives would, if anything, narrow the scope of any screening for AA – by shifting focus from

effects per se to effects by reference to the conservation objectives. Recital 7 of Directive 2009/147

states that “conservation is aimed at the long-term protection and management of natural resources

as an integral part of the heritage of the peoples of Europe”. Article 1(i) of Directive 92/43 defines

“conservation status of a species” as meaning:

“the sum of the influences acting on the species concerned that may affect the long-term

distribution and abundance of its populations within the territory referred to in Article 2.

The conservation status will be taken as ‘favourable’ when:

- population dynamics data on the species concerned indicate that it is maintaining

itself on a long-term basis as a viable component of its natural habitats, and

- the natural range of the species is neither being reduced nor is likely to be reduced

for the foreseeable future, and

- there is, and will probably continue to be, a sufficiently large habitat to maintain

its populations on a long-term basis;”

Conservation objectives aim to define favourable conservation status for the purposes of the

Directive 92/43. In theory, a plan or project may be considered as likely to have significant effects

on an SPA but escape such conclusions when viewed in light of conservation objectives – which take

into account matters such as population dynamics, range of species and having a sufficiently large

habitat. Screening for AA, which does not take into account conservation objectives, would, if

anything, involve a more enhanced/expansive scope for screening, which is consistent with the fact

that screening involves a low threshold. This is further fortified by the fact that a competent

authority is mandated to adopt a precautionary approach to screening for AA. On the facts of this

case, the competent authority found there were no effects and so it logically follows that there is no

possibility/likelihood of significant effects to the qualifying interests, regardless of the conservation

objectives. Where, as here, the finding (made on the basis of the evidence adduced) of the

Competent Authority is that there are no significant effects on any European Sites arising from the

project, the absence of site specific conservation objectives does not and could not alter or affect

this outcome – in such circumstances, noting the purpose of the Directive (which is in no way

undermined) the absence of site specific conservation objectives does not have the consequence of

depriving the Competent Authority of jurisdiction from carrying out such an assessment. As regards

conservation measures, the absence of site specific special conservation measures does not preclude

the Competent Authority of jurisdiction to assess whether a project is likely to have a significant

effect on a European Site. An assessment under Article 6(3) of Directive 92/43, as per the text of

same, does not concern conservation measures. Under Article 4(1) of Directive 2009/147, the

designation of SPAs is itself a conservation measure. Therefore, under both Article 4(1) of the Birds

Directive and Article 6(1) of Directive 92/43, conservation measures have no link to the assessment

under Article 6(3) of Directive 92/43.

35. The State’s proposed answer is No. Conservation objectives may be relevant to appropriate

assessment screening but are not a jurisdictional requirement. There is no textual basis in Article

6(3) from which a jurisdictional bar could be inferred, and neither the context nor the purpose of

Article 6(3) requires or supports such an inference. If a jurisdictional bar existed, it would constitute

a complete prohibition on the granting of consent, if there were a single site anywhere in the country

that lacked conservation objectives. There could be no justification for implying such an extreme

obligation into Article 6(3), where it will frequently be possible to screen out a site without reference

to conservation objectives. This would be to adopt an overly formalistic position, such as AG

Sharpston warned against in Case C-258/11 Sweetman at [48]. Any circumstance in which a lack of

conservation objectives might impact on a competent authority’s ability to carry out the screening

exercise will necessarily arise only on a case-by-case assessment and does not equate to or require

a jurisdictional bar. Conservation measures have no relevance to the carrying out of an appropriate

assessment or an appropriate assessment screening. There is therefore no conceivable basis to infer

into Article 6(3) a jurisdictional bar to carrying out an appropriate assessment screening in the

absence of conservation measures.

36. The referring court’s proposed answer is No. The process of screening for appropriate

assessment would be unworkable if the competent authority was required to consider conservation

objectives and/or measures of any site being screened out. The vast majority of sites can be

screened out due to distance and the lack of a plausible pathway. There is no textual link in the

Directive between screening and objectives or measures.

37. The relevance of the question is that if the answer is Yes, the applicant will be given a

declaration that the screening exercise here ought to have been carried out by reference to the

conservation objectives and/or measures of the relevant SPA.

38. Given the significant overlap with C-27/25, Knocknamona, and the fact that similar

considerations for priority apply in the present case including the impact on the present and other

applications for renewable energy infrastructure, the referring court respectfully requests an Order

affording the present reference priority over other cases pursuant to Rule 53(3) of the Rules of

Procedure and/or an Order that this reference and Case C-27/25, Knocknamona be joined pursuant

to Rule 54(1) and (2) of the Rules of Procedure.

Order

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

(i) the question set out in this judgment be referred to the CJEU pursuant to Article 267

TFEU;

(ii) 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 Article

53(3) of the Rules of Procedure, the referring court respectfully requests an Order

affording the present reference priority over other cases pursuant to Rule 53(3) of

the Rules of Procedure and/or an Order that this reference and Case C-27/25,

Knocknamona be joined pursuant to Rule 54(1) and (2) of the Rules of Procedure;

(iii) the applicant has requested the referring court to inform the CJEU that he does not

wish his name to be anonymised for the purposes of the proceedings in the CJEU

and therefore that he can be named by the CJEU including by way of the publication

of materials or of the judgment of that court; and

(iv) the substantive determination of the balance of the proceedings be adjourned

pending the judgment of the CJEU, without prejudice to the determination of any

appropriate procedural or interlocutory issues in the meantime.