Court recognises climate emergency

In a welcome decision delivered on 1 November 2024, in Toole & Anor -v- Minister for Housing Local Government and Heritage [2024] IEHC 610, the High Court (the Court) (Humphreys J) refused to grant an order of certiorari by way of judicial review quashing an investigative foreshore licence granted by the Minister for Housing, Local Government and Heritage (the Minister) to an offshore windfarm developer, Codling Wind Park Limited (CWPL) (the Foreshore Licence).

In doing so, the Court provided a comprehensive overview of the dynamic legal and climate context to its decision over the last 5 decades, specifically referencing the extraordinarily rapid deterioration of the atmospheric environment that has taken place in parallel with the increasing complexity of environmental law.

The Court held that CWPL did not breach the terms of the Foreshore Licence on the extremely technical grounds put forward by the Applicant, which ostensibly were rooted in what the Court called “professed environmental concerns”. It accordingly also refused to grant an order of mandamus directing the Respondent to terminate the Foreshore Licence on the basis of this alleged breach. It held that the applicants’ technical interpretation of the Foreshore Licence would in fact “necessitate the carrying out of additional marine surveys which – on the applicants’ case – would give rise to a wholly unnecessary risk of environmental harm”. In this way, the Court signalled that it will not tolerate cases mounted on overly legalistic or technical grounds masquerading as environmental concerns which in reality have the practical effect, if successful, of causing environmental damage. It even went so far as to broadly endorse the opposing parties’ descriptions of some of the applicants’ positions as “cynical” and “ludicrous”.

Ultimately, the Applicants were almost entirely unsuccessful, prevailing only insofar as the Court made an order of mandamus requiring the Maritime Area Regulatory Authority (MARA) to amend one condition of the Foreshore Licence to comply with the strict standards of EU Regulations.

Importantly, the stay on the Foreshore License was immediately lifted and, in a decision that will come as a relief to developers, Humphreys J rejected the claim that the data obtained by CWPL should be declared unlawful, providing much needed clarity on the issue of data reliance.

A&L Goodbody acted for the notice party, CWPL in this matter. In this article, we consider the decision and explore the relevant legal principles.

Relevant background and core grounds

The site investigation works to be carried out under the Foreshore Licence relate to a proposed offshore wind farm in the Irish Sea, in an area called Codling Bank, off the County Wicklow coast. The licence authorised temporary environmental survey work over a very wide area that already sees very significant maritime activity.

The Foreshore Licence prescribed that geophysical surveys should be carried out before geotechnical surveys, which involve more intrusive exploration. However, CWPL had already carried out certain geophysical surveys under a previous foreshore licence and so proceeded to carry out their geotechnical surveys under the Foreshore Licence in these areas. The Applicants argued this was a breach of the Foreshore Licence, which on a technical reading did not allow for this and argued the Minister was obliged to terminate the Foreshore Licence on foot of this.

As part of the process for obtaining the Foreshore Licence, a screening for Appropriate Assessment report (AA) was prepared by a marine ecologist of the Department, as required under art. 6(3) of  Council Directive (EU) 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive). On 12 May 2023, the Foreshore Licence was executed between the Minister and Codling subject to 44 conditions.

The Applicant argued that the Foreshore Licence was in breach of Article 6(3) of the Habitats Directive in that some of the mitigation measures required under Appropriate Assessment (AA) were not made conditions of the Foreshore Licence. It also argued that the mitigation measures set out in the AA and the Foreshore Licence did not comply with Article 6(3) of the Habitats Directive, and that the Minister failed to properly consider the cumulative impacts arising from other plans or projects with the potential to have in-combination effects with the activities permitted by the Foreshore Licence.

Legal principles

Article 6(3) of the Habitats Directive provides that: “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.”

Regulation 42 of the Habitats Regulations transposes this requirement into Irish law and section 42(1) provides as follows: “A screening for Appropriate Assessment of a plan or project for which an application for consent is received, or which a public authority wishes to undertake or adopt, and which is not directly connected with or necessary to the management of the site as a European Site, shall be carried out by the public authority to assess, in view of best scientific knowledge and in view of the conservation objectives of the site, if that plan or project, individually or in combination with other plans or projects is likely to have a significant effect on the European site.”

Decision

The Court held that CWPL did not breach the Foreshore Licence in carrying out geophysical surveys under its prior licence before carrying out geotechnical surveys under the Foreshore License and that even if there had been a breach, there was no obligation to terminate the licence and it would be MARA not the Minister who would carry out this function.

It granted an order of mandamus requiring MARA to amend one condition of the Foreshore Licence to correct a typographical error and to expressly include three conditions contained in the AA in order to comply with the strict standards of EU Regulations. The Court held that the mitigation measures were otherwise sufficient and the Applicants had failed to demonstrate that the issues complained of were likely to risk significant effects on European sites.

Finally, it held that the CWPL sensibly assessed pending projects in the context of its assessment of cumulative impacts of the project combined with other projects, as did the Minister. 

Key takeaways

This case brings clarifications to offshore developers and projects and perhaps signals a welcome shift in the common law to the environmental focus of these projects and their importance in terms of government climate objectives, and the need to speed up the development of offshore wind while balancing all of the rights involved.

For further information, please contact Jason Milne, Partner, Hannah Shaw, Senior Associate, or your usual ALG Environmental & Planning contact.