The EU’s top court is to rule later this month on whether An Bord Pleanála properly assessed the environmental impact on the habitat of the hen harrier of a proposed €80m wind farm in Tipperary.
The Court of Justice of the European Union (CJEU) has said the challenge by environmentalists to the proposed wind farm (which would be within a designated special protection area) is likely to set case law on wind farms and protected habitats.
An Bord Pleanála had ruled that the measures proposed by ESB Wind Development and Coillte, the joint developers of the wind arm at Keeper Hill, in the Silvermines Mountains, in relation to the preservation of the hen harrier, a protected bird species, had complied with its obligations under the EU Habitats Directive.
The proposed development consists of 16 turbines, as well as access tracks, an electrical transformer station, control buildings, and a substation.
The case was referred to the CJEU by the Supreme Court, which stated there was a difficulty in interpreting the requirements of EU legislation, as the hen harrier habitat was not static, changing due to forestry activity and plantation rotation. It said the maintenance of the special protection area was partly dependent on how the site was managed by human intervention.
The Supreme Court ruled that a judicial review sought by Edel Grace, of Grouse Hall, Milestone, Thurles, had legal standing to challenge An Bord Pleanála’s grant of planning permission for the wind farm at Keeper Hill.
It made no finding about the right of another appellant, Peter Sweetman, a well-known litigant on environmental planning issues, to seek a judicial review.
Both Ms Grace and Mr Sweetman claim that 400 acres of hen harrier foraging would be lost if the proposed wind farm was allowed to be developed, while the existing habitat of the hen harrier would also e destroyed.
The Department of Arts, Heritage, and the Gaeltacht, as well as An Bord Pleanála’s own inspector, had recommended that planning permission for the project should be refused.
North Tipperary County Council had also refused planning permission for the development, in 2013, but its decision was overturned on appeal to An Bord Pleanála.
A legal opinion issued by the CJEU, earlier this year, said the case presented the court with “a timely and valuable opportunity to develop its case law on the EU Habitats Directive.”
Although the legal opinion is not binding, it found that a proposed management plan for the site of the wind farm, which is designed to ensure that the amount of the site suitable as a habitat for the hen harrier was not reduced, could not be regarded as “protective measures.”
If confirmed by the CJEU in its ruling on July 25, it will be a setback for the ESB and Coillte, as An Bord Pleanála would be required to review the application.
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