knowledge 16 December 2024 |

CJEU asked if stage two assessment can proceed without site-specific conservation objectives

On 5 December 2024, the Irish Court of Appeal referred to the Court of Justice of the European Union (“CJEU”) a question about site-specific conservation objectives: Power v. An Bord Pleanála [2024] IECA 295. 

Specifically, the court has asked the CJEU whether valid conservation objectives are a pre-condition to the jurisdiction to carry out a stage two appropriate assessment under the Habitats Directive.

Pending an answer from the CJEU – likely to take ~18 months, every planning permission granted for projects that require appropriate assessment – where there are only generic conservation objectives (as opposed to site-specific objectives) – is vulnerable to legal challenge. At minimum, those challenges will have to await the answer from the CJEU. There must be a prospect that An Bord Pleanála will refrain from making decisions on applications to which this risk applies.

That said, it is far from clear how problematic this will be, in practice.

Where the State has published valid site-specific conservation objectives, the issue does not arise.

In Knocknamona, when the amendments permission was granted in September 2022, there were only generic conservation objectives. There are now, since March 2024, site-specific objectives. Put simply, if the permission was granted afresh, the same legal complaint could not now be made.

That is because the State has been provoked by the European Commission to plug the gap. In 2021, the European Commission complained to the CJEU about Ireland’s delay in making site-specific objectives: Case C-444/21. The CJEU agreed that the State had failed to define site-specific objectives for 140 for 423 sites of concern to the European Commission. When the CJEU judgment was delivered, on 29 June 2023, the State published a press release stating that site-specific objectives “have been formally identified and published in respect of all 423 sites in the case”.

Where site-specific objectives have been adequately defined, this issue should not be relevant. It may be different across Europe, as in October 2022, the European Commission reported this was a problem across half the special protection area in Europe.

This must feel particularly harsh for those interested in the Knocknamona amendments permission. The Irish High Court had concluded, on the facts, that the missing site-specific objectives made no difference ([2024] IEHC 108), but accepted the question deserved answering by the Court of Appeal ([2024] IEHC 247). The fact matrix is quite unique, given the permission was for modest turbine-type changes only, and given the court found – as a fact – that “there is no scenario in which, by reference to any such possible conservation objectives for the SPA, there could be a significant effect on the Whooper Swan”.

The issue is not just relevant to renewable energy: it is also live in the challenge to the N52 Ardee Bypass: Friends of Ardee Bog v. An Bord Pleanála [2024] IEHC 292, and other cases, yet to be heard.

While the High Court was pragmatic in both Power and Friends of Ardee Bog, and while the CJEU was pragmatic in an analogous challenge to assessment under the Water Framework Directive (Sweetman v. An Bord Pleanála (Bradan Beo Teo): Case C-301/22, there must be a real risk the CJEU will answer the question asked in the affirmative.

That is because on 12 September 2024, the CJEU made relevant remarks when answering questions from the Greek courts in Elliniki Ornithologiki Etaireia and Others v Ypourgos Esoterikon and Others: Case C-66/23. Specifically, the court observed that “the site’s conservation objectives are to act as a mandatory reference point for the appropriate assessments required”. The phrase “mandatory reference point” was relied upon by the Court of Appeal as significant to why a question needed to be asked.

That being so, we can only welcome efforts by the State to render the pending reference moot by ensuring there are site-specific objectives for every European site.

Also contributed to by Sam McMahon.