Alen-Buckley v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Haughton
• Judgment Date: 26 September 2017
• Neutral Citation: [2017] IEHC 541
• Court: High Court
• Date: 26 September 2017

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 AND 50B OF THE PLANNING AND DEVELOPMENT ACT

BETWEEN

MICHAEL ALEN-BUCKLEY

AND

GIANCARLA ALEN-BUCKLEY

APPLICANTS

AND

AN BORD PLEANÁLA

FIRST NAMED RESPONDENT

AND

IRELAND AND THE ATTORNEY GENERAL

SECOND NAMED RESPONDENT

AND

WATERFORD CITY

AND

COUNTY COUNCIL

AND

ECOPOWER DEVELOPMENTS LIMITED

NOTICE PARTIES

[2017] IEHC 541

Haughton Robert J.

THE HIGH COURT

COMMERCIAL

JUDICIAL REVIEW

Environment, Construction and Planning – S. 50 of the Planning and Development Act – Environment Impact Statement (‘EIA’) – Stage 1 screening test – Habitats Directive

Facts: The applicants sought an order of certiorari for quashing the decision of the first named respondent (‘Board’) for granting planning permission to the second named notice party for wind farm development. The applicants argued that the Board not only granted planning permission as recommended by the inspector but also approved permission for grid connection and haul route works. The applicants also objected to the test applied by the Board in carrying out the Appropriate Assessment (‘AA’) in concluding that the proposed development did not likely to have significant effects on European sites.

Mr. Justice Robert Haughton refused to grant the desired reliefs to the applicants. The Court noted that the applicants did not provide sufficient evidence to show that the planning permission was extended by the Board. The Court found that the Board had simply granted permission in accordance with the recommendation of the inspector for the wind farm development and not the extended works. The Court concluded that the Board had applied the correct test at Stage I screening while doing the Appropriate Assessment. The Court held that art. 6(3) of the Habitats Directive called for two stage assessment and it was only when there was any likelihood that there would be an adverse impact on the European site in Stage one, the Board should proceed for an assessment under Stage two. The Court observed that the inspector had screened the proposed development for significant effects on European sites and thus, he did not apply threshold of probability.

Judgment of Mr. Justice Robert Haughton delivered on the 25th day of September, 2017.

Paragraph No. Title

2 Background

9 Submissions of the Applicants

11 Preliminary Issue

18 The Extent of the Planning Permission

32 Two grid connection routes

34 O'Grianna

36 Site Notice false/deficient

41 Disregard of the decision of the County Council

44 Material contravention, the Waterford City and County Development Plan, and ‘Visual impact’

61 Improper derogation of responsibility to the Planning Authority and general validity of conditions

69 Test Applicable to Appropriate Assessment

86 Conclusion

1 These judicial review proceedings arise out of a decision by An Bord Pleanála (‘the Board’) dated 14 December, 2016, to grant planning permission to Ecopower Developments Limited (‘Ecopower’) for a wind farm development at Knocknamona, Co Waterford. The Applicants seek an order of certiorari quashing the decision of the Board as well as several other declaratory reliefs as set out in their notice of motion dated 22 February, 2017.

Background

2 On 31 July, 2014, Ecopower applied to Waterford County Council for planning permission for a development of a windfarm consisting of twelve wind turbines, one meteorological mast and various associated works. The application was considered by Waterford County Council who refused permission on 23 September, 2017, on two grounds, namely, (i) that the Environmental Impact Statement (‘EIS’) submitted with the application was inadequate and (ii) that the development would have an adverse effect on the landscape and visual amenity. Upon refusal, Ecopower appealed to the Board. On appeal Ecopower's proposal was revised to omit three of the twelve turbines to alleviate concerns propounded by the County Council relating to the impact on the landscape and visual amenity.

3 The Board appointed an Inspector to report in relation to the application and furnish the Board with an appropriate recommendation. In a report dated 10 April, 2015, the Inspector recommended refusal of the application solely on the basis that the development would result in excessive noise being generated at dwellings in the vicinity. The Inspector was also of the view that, in light of the decision in O'Grianna v An Bord Pleanála (No. 1) [2014] IEHC 632, the EIS was deficient and required further detail relating to the proposed grid connection for the development. However, this particular concern was not recommended as a ground for refusal, the inspector stating that –

‘13.17.4 …If permission is not being refused for any other reason, I consider that it would be appropriate to revert to the applicant by way of further information on this issue.’

4 After consideration of the Inspector's recommendation, the Board decided to issue a request for further information from the Developer pursuant to section 132 of the Planning and Development Act, 2000 (as amended) ‘the 2000 Act’). This request sought a revised EIS which included details relating to the haul route works required, a minutes per day shadow flicker assessment, the proposed grid connection, a revised Habitats Directive screening report and a revised Nature Impact Statement, if necessary. This information was subsequently furnished to the Board who considered same and decided to (i) notify all parties to the appeal of the receipt of this additional information, (ii) require the developer to publish notices informing the public that the Board had received this further information and invite submissions re same and (iii) refer the matter back to the Inspector for the purpose of preparing an addendum report. Over one hundred submissions were received after publication of the updated notice, including two on behalf of the applicants herein.

5 As requested, the Inspector prepared an addendum report dated 20 September, 2016. In this report, the Inspector stated that he had incorrectly interpreted the Ministerial Guidelines relating to the noise factor and concluded that the noise of the proposed development would not be in excess of the threshold allowed for in the Guidelines issued by the then Department of the Environment, Housing and Local Government. The Inspector also conducted an Environmental Impact Assessment (‘EIA’) and screening for Appropriate Assessment (‘AA’), encompassing the proposed lands, the haul routes and the grid connection. He concluded that the proposed development, either individually or in combination with other plans or projects, was not likely to have significant effects on any European sites. In such circumstances, he deemed “stage 2” AA to be unnecessary and recommended that planning permission be granted subject to a number of conditions.

6 In relation to the EIA, the Board in its direction dated 22 November, 2016, stated that after the omission of four turbines, the effect on the environment by the development ‘would be acceptable by itself and cumulatively with other developments in the vicinity, including other wind farms and the proposed grid connection route, subject to the implementation of the mitigation measures proposed and to compliance with the conditions as set out below.’ In relation to the AA, the Board stated, ‘by itself and in combination with other plans and projects in the area, the proposed development would not be likely to have significant effects on European sites…the need for further Stage II Assessment therefore does not arise.’

7 The Board decided on 22 November, 2016, to grant planning permission ‘generally in accordance with the Planning Inspector's recommendation’ and attached seventeen conditions or ‘mitigation measures’ to this permission.

8 By order of the High Court dated 20 February, 2017, the applicants were granted leave to judicially review the decision of the Board to grant planning permission to Ecopower for the Knocknamona Windfarm development. These proceedings were transferred into the Commercial Court by Order dated 13 March, 2017. By order dated 22 May, 2017, the proceedings were struck out as against the second named respondent as no EU law transposition or interpretive issue was pursued. The respondent and Ecopower were separately represented and opposed the application. Waterford City and County Council did not appear at the hearing.

Submissions of the Applicants

9 A considerable number of arguments were made by counsel for the applicants in both written and oral submissions. Not all grounds raised in the Statement of Grounds were pursued. The applicants' initial written submission lacked clarity, and was effectively replaced in opening with a written ‘Outline of Applicant's case’ described by counsel as a “speaking note”. Understandably this drew objection from counsel for the respondent and notice party as it was not furnished in advance or pursuant to leave of the court, but the court found it of some assistance in identifying and narrowing the issues and arguments actually being pursued by the applicants in light of the 37 grounds set out in para.5 of the Statement of Grounds.

10 There is a significant degree of overlap between the Statement of Grounds and the written submissions; however the core arguments can be divided into two categories, namely (a) the issues relating to the granting of planning permission for the grid connection and temporary haul routes, and ancillary issues flowing from same and (b) additional issues with the decision of the Board to grant planning permission to the Windfarm development alone. If the Court finds that planning permission was not in fact granted for the grid connection and haul route works, then the ancillary issues flowing from this fall away. The various arguments as advanced by the applicants can be...