A High Court judge is to ask the Court of Justice of the EU (CJEU) to decide issues concerning Coillte's environmental responsibilities in relation to grid connection works for a wind farm in Co Laois.
The issues concern whether mitigation measures can, as a matter of law, be considered at the screening stage of a particular development.
Their determination will involve considering requirements of Article 6.3 of the European Commission Habitats Directive.
Speaking in the High Court on Thursday, Judge Max Barrett said objectors to the Co Laois wind farm had argued that the future of the Nore freshwater pearl mussel, a species thought to be unique to Ireland and the River Nore region, may be threatened by the proposed development.
He said it was difficult to think of an instance where the objectives and provisions of the Habitats Directive “could be more fully engaged, and require more carefully to be observed”, than where extinguishment of a species may be at stake.
Coillte previously secured permission for 18 wind turbines and associated development on lands at Cullenagh, close to the villages of Timahoe and Ballyroan.
That permission was challenged by People Over Wind, but was upheld by the Court of Appeal in 2015.
People Over Wind campaigner and environmentalist Peter Sweetman has now challenged a July 2016 determination by Coillte, made under 2011 regulations giving effect to the Habitats Directive, that grid connection works to connect the wind farm to an ESB substation in Portlaoise did not require a stage-two appropriate assessment.
The applicants argue that such an assessment is required for reasons including the grid connection works, individually or with other plans or projects, are likely to have a signficant effect on a European site.
They also claim the proposed mitigation measures were not clearly defined and do not form part of an enforceable development consent condition.
Coillte argues its determination complies with the Habitats Directive and, given the outcome of a stage-one screening assessment, there is no requirement for a stage-two assessment.
It also maintains that protective measures applied at the design stage of a proposed development can be taken into account in the stage-one assessment.
CJEU’s views
In a judgment on Thursday, the judge said he believed the CJEU’s views on the Article 6.3 issues raised by the case were necessary before he could give his determination.
He said no conclusive view had been reasoned by the High Court on the issue of whether mitigation measures can generally be considered as part of a stage-one screening assessment done under Article 6.3.
Given the centrality of that issue to resolution of this case, he said the court must ask the CJEU to decide issues concerning whether avoidance and/or mitigation measures forming part of a project can, as a matter of law, be considered at the screening stage.
