100 Meter Tall Group and Others v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 31 January 2025
• Neutral Citation: [2025] IEHC 42
• Docket Number: [H.JR.2023.0001391]
• Court: High Court

In the Matter of Sections 50 and 50A of the Planning and Development Act 2000 (As Amended)

Between

100 Meter Tall Group and Patrick Keogh and Patrick Gorey and John Curran

Applicants

and

An Bord Pleanála

Respondent

and

Seamus Madden

Notice Party

[2025] IEHC 42

[H.JR.2023.0001391]

THE HIGH COURT

PLANNING & ENVIRONMENT

JUDGMENT of Humphreys J. delivered on Friday the 31st day of January 2025

1 The developer enjoys permission for a wind turbine to serve a factory. The turbine was constructed 36 metres out of its permitted position, so, following, among other things, an environmental impact assessment ( EIA) preliminary determination which ruled out the need for EIA screening, the developer obtained retention permission for that modest adjustment. The main ground of challenge is the implausible-sounding proposition that the grant of retention permission was precluded by the very fact of there having been an EIA preliminary examination. The issue here is whether on this or any other ground the applicants have pleaded and then demonstrated any specific illegality warranting certiorari.

Geographical context

2 The development here is about 2 km north of Limerick City. It involves a revised site boundary and revised position of a single 800kW wind turbine, 73 metres to hub height at Gortatogher, Parteen, County Clare. To the south and west is the Lower River Shannon SAC (site code 002165). Some distance to the west is the River Shannon and River Fergus Estuaries SPA (site code 004077). Some distance to the east is the Slievefelim to Silvermines Mountains SPA (site code 004165). To the north and west is the Lough Derg (Shannon) SPA (004058).

Facts

3 The original permission was granted in 2010 (P10/453).

4 The permission was extended in 2015 by the council (P15/812) to 2021.

5 The contested turbine was constructed in 2021, but not in the correct location.

6 On 23rd March 2022, the notice party made a retention application to Clare County Council ( the council) for the proposed development.

7 The development was revised by the further public notice received by the council on 2nd September 2022.

8 The council issued a notification of decision on 23rd September 2022, granting retention subject to conditions.

9 On 20th October 2022, the first named applicant appealed the decision to the respondent. On 20th October 2022, the second and third named applicants also appealed the decision to the respondent.

10 The respondent appointed an inspector who carried out a site inspection on 9th May 2023.

11 The inspector furnished a report on 25 May 2023, recommending that permission be granted for the proposed development subject to ten conditions.

12 By direction on 6th October 2023, the respondent directed that permission for the proposed development be granted.

13 By order signed in or around 12th October 2023, the respondent granted permission for the development subject to 10 conditions ( https://www.pleanala.ie/en-ie/case/314887).

14 In January 2024, the notice party began operating and testing the wind turbine.

15 Since June 2024, the wind turbine has been fully operational.

Procedural history

16 On 5th December 2023, the proceedings were opened for the purposes of stopping time.

17 On 16th December 2023, s. 34(12) of the 2000 Act (which relates to conditions for retention permission) was substituted by the Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 12(b), S.I. No. 645 of 2023, subject to transitional provision in s. 41(8).

18 On 18th December 2023, the proceedings were transferred to this List.

19 On 22nd January 2024, Farrell J. granted the applicants leave to apply for judicial review.

20 On 8th February 2024, the proceedings were returnable to the List.

21 The parties agreed directions on consent and revised directions on consent.

22 On 21st June 2024, the notice party applied for a hearing date. The proceedings were fixed for hearing date for 14th January 2025.

23 On 14th October 2024, the proceedings were mentioned and further revised directions were ordered. The proceedings remained fixed for hearing date for 14th January 2025.

24 On 15th October 2024, the board filed/served its statement of opposition and verifying affidavit.

25 On 23rd October 2024, the notice party served its statement of opposition and verifying affidavit.

26 On 1st November 2024, the applicants delivered a further affidavit.

27 On 15th November 2024, the board served a replying affidavit.

28 On 5th December 2024, the applicants delivered their written submissions and their draft input for the statement of case.

29 On 16th December 2024, the applicants provided a further draft of statement of case.

30 On 16th December 2024, revised directions were agreed between the parties and a callover ‘for mention’ listing of 13th January 2025 was assigned.

31 On 19th December 2024, the board delivered its written submissions and draft input for the statement of case.

32 On 19th December 2024, the notice party delivered a further affidavit.

33 On 23rd December 2024, the notice party delivered its written submissions.

34 The matter was then heard on 14th and 15th January 2025. At the conclusion of the hearing, the applicants asked for the indulgence of making a further oral submission on foot of the decision in ( [2025] IEHC 15 Eco Advocacy v. An Bord Pleanála Unreported, High Court, 15th January 2025). The matter was listed for that purpose on 20th January 2025 but could not proceed on that date and was adjourned to 27th January 2025.

35 On the latter date, when the matter was called and without much in the way of advance notice, the applicants asked for permission to reopen the evidence and file further ecological evidence, and secondly made submissions arising from the decision in Eco Advocacy. Following discussion with the parties, the position adopted at that point was that I would reserve judgment on both points. If I were to allow further evidence I would give judgment on that alone and adjourn the balance of the case, and if not I would decide the substance. Judgment was therefore reserved on that basis on that date.

Relief sought

36 The reliefs sought in the statement of grounds are as follows:

“1. An Order of Certiorari, by way of application for judicial review, quashing the decision of the Respondent, dated 12 October 2023 (Ref: ABP—314887–22) granting retention permission for a revised site boundary and revised position of a single 800kW wind turbine, 73 metres to hub height as granted under P10/453 and P15/812, all at Gortatogher, Parteen, County Clare, as revised by the planning authority on 02 September 2022.

2. Such declarations of the legal rights and/or legal position of the Applicants and/or persons similarly situated and/or of the legal duties and/or legal position of the Respondent and/or Notice Party as the court considers appropriate.

3. A stay on the operation of the planning permission being challenged pending the determination of the proceedings and/or further order of this Honourable Court.

4. If necessary, an order for the discovery of documentation which is or has been in the power, possession, or procurement of other parties hereto and which is relevant to any issue in these proceedings.

5. Liberty to file further Affidavits.

6. Such further or other order as this Honourable Court shall deem fit.

7. A Declaration that the within proceedings are covered by the protective costs provisions of s.50B of the Planning and Development Act 2000 (as amended), and/or sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011 (as amended), and/or the Legal Services Regulation Act 2015 and/or Order 99 RSC.

8. The costs of these proceedings.”

Grounds of challenge

37 The core grounds of challenge are as follows:

“DOMESTIC GROUNDS

1. The Respondent's decision is invalid and/or ultra vires and erred in law in failing to have regard to the Wind Energy Development Guidelines, June 2006 and the draft Wind Energy Guidelines 2019 (‘the Guidelines’) contrary to section 28(1) of the Planning and Development Act 2000 (as amended) (‘the 2000 Act’) and/or to give adequate reasons for not following the Guidelines.

2. The Respondent erred in law, acted ultra vires, and/or took into account irrelevant considerations and/or misunderstood and/or overlooked relevant material and/or acted irrationally that (i) the proposed development will not give rise to adverse effect on noise sensitive receptors; and (ii) the proposed development will not give rise to adverse effects on residential amenity as a consequence of shadow flicker.

3. The impugned decision is invalid in that it has failed to address public observations and/or failed to give adequate reasons for not accepting submissions in arriving at its decision.

4. The Respondent erred in law, acted ultra vires, and/or took into account irrelevant considerations and/or misunderstood and/or overlooked relevant material and/or acted irrationally in granting permission without first receiving a detailed Radar Impact Assessment as sought by the Irish Aviation Authority before determining the application due to the proximity of the development to Woodcock Hill Radar station.

EUROPEAN GROUNDS

5. The impugned decision was made ultra vires, in error of law and is invalid as it was made in breach of section 34(12) of the Planning and Development Act 2000 (as amended) and/or Article 4 and/or Annex II, Annex IIA and/or Annex III of the EIA Directive. In particular, Clare County Council did not have jurisdiction to determine and to grant the application to retain the unauthorised development because the Notice Party was required to make an application for substitute consent directly to the Respondent in respect of the unauthorised development in accordance with Part XA of the Planning and Development Act 2000 (as amended).

6. The...