CJEU to decide if site-specific conservation objectives are essential for a valid AA

The Court of Appeal has today, 5 December 2024, referred an important question to the CJEU as follows:

“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) 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?”

The case is Power & Wild Defence Ireland CLG v An Bord Pleanala, Ireland and the Attorney General and Knocknamona Windfarm Limited. It concerned judicial review proceedings taken to challenge a decision of An Bord Pleanála (the Board) to grant permission to Knocknamona Windfarm Limited to allow it to change the dimensions of the 8 permitted turbines from 126m to up to 155m in height (with changed rotor diameter too) and the dimensions and design of the met mast from 80m to a max of 90m. The windfarm is 12km west of Dungarvan, and 13km from the Blackwater Callows SPA. The Board was satisfied that the extension was appropriate in planning terms and satisfied the Appropriate Assessment test.

Key facts were agreed as follows at the High Court stage:

1. Only generic conservation objectives were in place for that SPA, not site-specific ones; and
2. There was no evidence of any adverse impact on the integrity of the SPA from the proposed development – for the Qualifying Interests of teal, Blacktailed Godwit and widgeon, the habitat at the wind farm site was unsuitable by way of support, and there was no evidence of Whooper Swan at or near the site. This was as found by the Board’s Inspector and adopted in the Board’s decision in making the Appropriate Assessment determination.

The net question raised in the proceedings was whether or not the Board had jurisdiction to conduct a lawful Appropriate Assessment for the Blackwater Callows SPA at all, in the absence of Site-Specific Conservation Objectives having been identified. On 28 February 2024, the High Court determined that on these particular facts, it was not necessary for SSCOs to have been identified. Holland J acknowledged that in many cases that would not be correct. He certified the question for appeal to the Court of Appeal which has today determined that the CJEU’s views on the question must be obtained before the appeal can be determined. This is because the appeal raises an issue of EU law that has not been previously determined. It typically takes the CJEU 12-18 months to determine net issues such as this.

In the meantime, it raises doubts about the ability of competent authorities to carry out valid Appropriate Assessments in respect of protected sites in which no SSCOs have been identified.

For further information in relation to this topic, please contact Alison Fanagan, consultant, or your usual ALG Environmental & Planning contact.

Date published: 5 December 2024