Supreme Court dismisses challenge to solar development

The Supreme Court has dismissed an appeal by a group of residents who sought to challenge the validity of a decision by An Bord Pleanála (ABP) to grant planning permission for a photovoltaic solar farm on a site of approximately 90 hectares in Co. Offaly (Concerned Residents of Treascon and Clondoolusk -V- An Bord Pleanala, Ireland and the Attorney General and Elgin Energy Services Limited, [2024] IESC 28). The appeal raised important issues concerning the proper interpretation and application of the Environmental Impact Assessment (EIA) Directive and the domestic legislation that gives effect to it.

The appellants argued that the proposed development, which involved the removal and relocation of some internal hedgerows, was a project for the restructuring of rural land holdings within Annex II, paragraph 1(a) of the EIA Directive, and therefore required an EIA screening and, if appropriate, a full EIA of the entire solar farm project. They also contended that the EIA Directive had not been properly transposed in the State, as the Minister for Agriculture, Food and the Marine (the Minister) was responsible for screening and conducting an EIA for such projects under the European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011 (the 2011 Regulations), but had no role in deciding whether the development should be permitted or the conditions to be attached to it.

The Supreme Court rejected these arguments and upheld the decision of the High Court, which had found that the appellants had failed to plead their case correctly and that their transposition challenge was misconceived. The Supreme Court held that the fact that the proposed development involved the restructuring of rural land holdings did not trigger the obligation to have an EIA in respect of the entire solar farm development, as solar farms were not listed in either Annex I or II of the EIA Directive. The Court also held that the EIA Directive did not require the centralisation of EIA functions in relation to a project into a single authority or into the regular planning process, and that the Minister could, in principle, carry out an effective assessment under the EIA Directive in accordance with the 2011 Regulations.

The Supreme Court's decision clarifies the scope and application of the EIA Directive and the domestic legislation that implements it, and confirms that the EIA obligation only applies to the projects listed in Annex I or II of the Directive, not to any wider project that may include or involve such projects. The decision also confirms that the EIA Directive does not preclude the existence of dual or multiple consent regimes for projects that may have significant effects on the environment, as long as the relevant competent authorities comply with the requirements of the Directive and the national law that gives effect to it.

For more information, please contact Jason Milne, Partner in A&L Goodbody's Environmental & Planning Group or any member of our Environmental & Planning Group.

Date published: 5 July 2024