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Planning policy and case law developments for the renewables sector

This briefing is intended as an update on three key policy and case law developments that have taken place over the summer.

New European Court ruling – ‘Sweetman II’

On 25 July 2018, the Court of Justice of the European Union (the Court) delivered its ruling in the case of Edel Grace and Peter Sweetman v An Bord Pleanala, or ‘Sweetman II’ (also known by some in the industry as ‘People over Wind II’.) The judgment developed the position taken in People Over Wind and Peter Sweetman v Coillte Teoranta (‘Sweetman I’), delivered in April this year.

The Court again focused on the interpretation of Article 6 of the Habitats Directive, which concerns the need for an appropriate assessment where a project is likely to have a significant effect on a site (onshore or offshore) designated as a special protection area or a special area of conservation (SPAs and SACs) The key question for the Court was at what point in the assessment under this Directive should mitigation measures be taken into account.

Current practice relating to appropriate assessment is based on a four-stage approach. Briefly, these stages are:

Screening to establish whether a likely significant effect may exist on the integrity of a designated site. If it does, the developer will need to undertake;

(ii) The appropriate assessment

Assessment of alternatives; if it cannot be ascertained that the project will not adversely affect the integrity of a site, then the developer must consider if there are conditions or restrictions (mitigation) that can be imposed to render the project acceptable. If that is not possible, alternative solutions should be considered.

‘IROPI’: if there are no alternative solutions, the proposed development must demonstrate imperative reasons of overriding public interest (‘IROPI’). The developer will need to demonstrate that there are reasons of economic, social, human health, public safety or important environmental benefits as to why the project should be carried out. The developer must also consider appropriate compensatory measures that may be introduced when granting consent.

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