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European Court of Justice

Dáil Éireann Debate, Tuesday - 9 November 2021

Tuesday, 9 November 2021

Questions (312)

Jennifer Whitmore

Question:

312. Deputy Jennifer Whitmore asked the Minister for Housing, Local Government and Heritage the measures Ireland has taken to comply with the European Court of Justice judgment arising from litigation (details supplied); and if he will make a statement on the matter. [53999/21]

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Written answers

The European Court of Justice ruling in this case (Case C-215/06) results from a case was taken against Ireland for failure to ensure full implementation of Directive 85/337/EEC (the EIA Directive). The judgment in this case had two grounds;

- first ground: that Ireland failed to ensure that projects likely to have significant effects on the environment by virtue of their nature, size or location, are made subject to an environmental impact assessment (EIA), before development consent is granted,

- second ground: the Court held that by failing to ensure the development consents granted for the Derrybrien Wind farm development were proceeded by an EIA, Ireland failed to fulfil its obligations under Articles 2, 4 and 5 to 10 of the EIA Directive.

The first ground in the judgment of case C-215/06 was addressed by amending national legislation via the Planning and Development (Amendment) Act 2010, which, amongst other things, introduced a legislative process known as substitute consent to provide for the potential regularisation of development consents that had previously been granted permission in breach of the EIA Directive. In effect, this is like retention permission for a development that required an EIA, but proceeded without one.

From when the judgment issued in case C-215/06 in July 2008, regular engagement took place between Ireland and the European Commission up to the end of 2017, to discuss proposals to ensure that the wind farm development at Derrybrien was brought into compliance with the EIA Directive, as per the second ground of the 2008 judgment, which included proposal for a non-statutory retrospective environmental impact assessment of the wind farm development. However, a mutually agreeable solution was not reached and the Commission informed Ireland by letter on 26 January 2018 that as it considered the second ground of the judgment in C-215/06 had still not been complied with, further referral to the Court of Justice of the European Union (CJEU) would be required which resulted in case C-261/18. Therefore, case C-261/18 only relates to the second ground of the judgment in case C-215/06, and concerns the regularisation of the Derrybrien wind farm development from an EIA perspective.

On Tuesday, 12 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 court judgment 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 21 August 2020, the ESB submitted a substitute consent application to An Bord Pleanála (the Board). 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.

My Department continues to working closely with the Department of the Environment, Climate and Communications, which has corporate governance responsibility for the ESB, with respect to the resolution of the judgment and the payment of the fines.

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