Background
Save the South Leinster Way and its chairperson, Tara Heavey, sought judicial review of a 26 September 2022 decision granting Springfield Renewables Ltd permission for 21 wind turbines and ancillary works at Castlebanny, County Kilkenny. The development traverses the southern section of the South Leinster Way, part of the European E8 walking route.
The High Court initially set aside the applicants’ leave order as out of time, but the Supreme Court reversed that ruling and remitted the case. In an earlier merits judgment, the High Court dismissed most grounds. The remaining issues concerned the absence, when the permission was assessed, of site-specific conservation objectives for Kingfisher in the River Nore SPA and Freshwater Pearl Mussel in the River Barrow and River Nore SAC, together with the applicants’ request to quash the permission.
The Court’s Holding
The High Court declared that the State respondents had failed, contrary to the Habitats and Birds Directives, to put site-specific conservation objectives in place for Kingfisher in the River Nore SPA until 2 July 2024 and for Freshwater Pearl Mussel in the River Barrow and River Nore SAC until 6 June 2025. It also declared that An Coimisiún Pleanála had contravened Article 6(3) of the Habitats Directive, as applied to the Birds Directive, and/or the transposing legislation by conducting an appropriate assessment without those objectives.
The court nevertheless refused certiorari and dismissed the proceedings in all other respects. The opposing parties had established that the error concerning conservation objectives was harmless, while the applicants had not proved an error concerning conservation measures. Because judicial review relief is discretionary and not every legal error invalidates a decision, the court held that a declaration adequately met the justice of the case and that discretion weighed decisively against quashing the permission.
The court also declined to refer a question to the Court of Justice of the European Union. It held that existing EU authority already established the relevance of harmless-error principles and that no demonstrated doubt requiring a preliminary reference arose.
Key Takeaways
- Conducting an appropriate assessment without required site-specific conservation objectives can breach Article 6(3) of the Habitats Directive and justify declaratory relief.
- Such a breach does not automatically require planning permission to be quashed where the opposing parties prove that the error had no effect on the outcome.
- Applicants remain confined to their pleaded case and generally bear the burden of proving an assessment defect; the burden of showing that an established error was harmless lies on the parties opposing relief.
Why It Matters
The judgment distinguishes between establishing an EU environmental-law breach and obtaining certiorari. Even where an appropriate assessment was legally defective, an Irish court may preserve the development consent if the defect is shown to have been harmless and discretionary principles weigh against quashing.
For planning and environmental litigants, the decision underscores the importance of precise pleadings and evidence addressing both the asserted defect and its practical effect. It also confirms that declaratory relief may formally recognize a breach without undoing the underlying permission.