I propose to take Questions Nos. 329 and 333 together.
On Tuesday 12th November 2019, the Court of Justice of the European Union issued its judgment in case C-261/18, which followed on from the judgment in case C-215/06. The judgment ruled against Ireland and imposed a lump sum fine of €5m and a daily fine of €15,000 until compliance is achieved, plus legal costs. The €5m lump sum penalty was paid in January 2020. In October 2020, €2,745,000 was paid to the European Commission in respect of daily fines accrued to date.
The court judgement will be complied with when the Derrybrien Wind Farm, which is owned and operated by a subsidiary of ESB, is subjected to a retrospective Environmental Impact Assessment (EIA) - otherwise known as substitute consent.
On Friday 21st August 2020, the ESB submitted a substitute consent application to An Bord Pleanála (the Board). I understand that the Board have set an indicative decision date of 4th January 2021. However, in accordance with Section 30 of the Planning and Development Act 2000, as amended, I am precluded from exercising any power or control in relation to any particular case with which a planning authority or the Board is or may be concerned.
In this regard, it would be a matter for the Board, in terms of issuing a decision on the substitute consent application, as well as for the ESB, in terms of carrying out any associated works which might be required to comply with the Board’s decision.
Concerning the issues raised with the substitute consent legislation by the Supreme Court in the judgment referenced in the question, the judgment and its implications has been examined and my Department is working with the Office of the Attorney General to bring forward measures to address the findings of the judgment as expeditiously as possible. It is envisaged that these measures will be in place by the end of 2020 and will address substitute consent applications currently before the Board.
My Department is working closely with the Department of the Environment, Climate and Communications, which is a shareholder of ESB and has corporate governance responsibility for same, and the Department of Public Expenditure and Reform, with respect to the resolution of the judgment and payment of the related fines. Discussions between the three Departments are ongoing.