The Environmental Impact Assessment (EIA) Directive specifies projects which, by virtue of their nature, size or location are likely to have significant effects on the environment and should be subject to EIA. The Directive requires projects listed in Annex I of the Directive to be subject to mandatory EIA and provides that Member States may determine whether projects listed in Annex II of the Directive shall be subject to EIA. Solar farm developments are not listed in either Annex I or II of the EIA Directive.
Projects requiring an EIA by a planning authority or An Bord Pleanála (the Board), as appropriate, in respect of an application for planning consent are listed in Part 1 and Part 2 of Schedule 5 of the Planning and Developments Regulations 2001 (the Regulations), which transpose the list of projects in Annex I and II of the EIA Directive into planning legislation.
Proposals for individual renewable energy development projects may be subject to EIA as part of the planning process. Part 2 of Schedule 5 of the Regulations includes certain renewable energy development projects, such as wind energy and, in accordance with the Directive, certain thresholds have been set below which certain developments need not necessarily be subject to EIA. EIA is also required in the consideration of planning applications, other than in the circumstances referred to above, where a development that is under the threshold in Part 2 of Schedule 5 of the Regulations (sub-threshold development) is likely to have significant effects on the environment, having regard to the criteria set out in Schedule 7 of the Regulations. Schedule 7 criteria include assessment of the characteristics of the proposed sub-threshold development having regard to its size, its cumulation with other development, pollution and nuisances, and the risk of accidents as well as the location of the proposed development having regard to the existing land use, the environmental sensitivity of the geographical area and the absorption capacity of the natural environment in the area of the proposed development.
Two High Court judgments issued on separate judicial review cases in 2020, provide further clarification on the scope of the EIA Directive as it applies to solar farm developments. The judicial review case references are as follows:
1. Sweetman v. An Bord Pleanála & Ors  IEHC 39 Judgment delivered by Mr. Justice McDonald on 31 January 2020
2. Kavanagh v. An Bord Pleanála & Ors  IEHC 259 Judgment delivered by Mr. Justice O’Moore on 29 May 2020
The implications of the two judgments are of significance in that they affirm the understanding that solar farm developments of the nature of those the subject matter of these judicial reviews do not fall within the classes of projects in either Part 1 or Part 2 of Schedule 5 to Regulations that transpose the Annex I and II of the Directive.
However, it is not necessarily the case that solar farm projects could never require EIA. Circumstances may arise in which a solar farm project may be subject to a requirement for EIA if, for example, one or more aspects of the project potentially comes within the scope of any of the project classes listed in Annex I or Annex II of the Directive and consequently, Part 1 and Part 2 of Schedule 5 to the Regulations, also noting the criteria for sub-threshold development as set out in Schedule 7 of the Regulations.
It would be a matter for a Planning Authority or An Bord Pleanála to assess a planning application for a solar farm development in accordance with the requirements of the EIA Directive, as transposed in the Planning and Development Act 2000 and the Regulations, and to determine if an EIA is required or not.