Jennifer Whitmore (Wicklow, Social Democrats)
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312. To ask the Minister for Housing, Planning, and Local Government 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]

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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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.

Jennifer Whitmore (Wicklow, Social Democrats)
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313. To ask the Minister for Housing, Planning, and Local Government the total fines incurred over an ongoing failure to observe proper environmental standards at a wind farm (details supplied); and if he will make a statement on the matter. [54000/21]

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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On 12 November 2019, the Court of Justice of the EU published its judgment in case C-261/18 Commission v Ireland (the Derrybrien Windfarm case). The Court ruled against Ireland and imposed a lump sum fine of €5 million and a daily fine of €15,000 against Ireland until compliance with the judgment is achieved, plus legal costs, payable to the European Commission.

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. ESB submitted a substitute consent application to An Bord Pleanála (the Board) on 21August 2020.

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.

To date, Ireland has paid €10,490,000 to the Commission in fines, broken down as follows;

- €5,000,000 lump sum fine paid in January 2020

- €2,745,000 daily fine (first instalment) paid in October 2020, relating to the period November 2019 to May 2020

- €2,745,000 daily fine (second instalment) paid in June 2021, relating to the period May 2020 to November 2020

On 27 October 2021, the European Commission issued a notification call for payment of the third instalment of daily fines to the sum of €2,730,000, relating to the period November 2020 to May 2021. The deadline for payment of this sum is set at 45 calendar days from the receipt of the notice, which is Saturday 11 December 2021.