Balz and Heubach v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 12 December 2019
• Neutral Citation: [2019] IESC 90
• Court: Supreme Court
• Docket Number: Supreme Court Appeal No.: 167/18
• Date: 12 December 2019

IN THE MATTER OF SS. 50, 50A, AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN/

KLAUS BALZ

AND

HANNA HEUBACH

APPELLANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CORK COUNTY COUNCIL, CLEANRATH WINDFARMS LTD.

NOTICE PARTIES

[2019] IESC 90

Clarke C.J.

O'Donnell J.

McKechnie J.

Charleton J.

Irvine J.

Supreme Court Appeal No.: 167/18

THE SUPREME COURT

Planning & development – Wind turbines – Application for permission to erect – Appellants seeking leave for judicial review – Appeal from dismissal of application for leave – S 28 Planning and Development Act 2000

Facts: The appellants owned property close to a site where one of the notice parties intended to erect wind turbines. After some time, permission was eventually granted by the respondent for 11 turbines. The appellants applied to the High Court for leave to seek judicial review, but the High Court had found for the respondent. The matter now came on appeal to the Supreme Court in respect of guidelines under s 28 of the Planning and Development Act 2000.

Held by the Court, that the decision of the respondent granting permission would be quashed. The respondent had failed to engage with the appellants’ submissions that the relevant guidelines issued under s 28 were outdated, and on that basis the parties were invited to make submissions as to any resulting ancillary orders.

O’Donnell J. gave the judgment.

Judgment of O'Donnell J. delivered the 12th day of December, 2019

1 The appellants, Klaus Balz and Hanna Heubach, have lived since 1992 at Bear na Gaoithe, County Cork, where they carry on a family horticulture nursery, flowers and gardening business. The second notice party, Cleanrath Windfarms Limited (“Cleanrath”), seeks permission to erect eleven turbines at Bear na Gaoithe. The appellants' house is 637 metres from the nearest proposed turbine.

2 Initially, Cork County Council granted permission for the development, but that permission was quashed by the High Court on judicial review for reasons which do not appear relevant to these proceedings. Subsequently, Cork County Council granted a further permission for six turbines only. This was appealed by Cleanrath, and cross-appealed by a number of objectors, including the appellants. An Bord Pleanála (“the Board”) granted permission by a majority of 3:1 for eleven turbines at the site. The decision of the Board does not identify the Board members involved, the dissenting member, or the reasons for the dissent. It should not be assumed, however, that any division of opinion within the Board was in any way related to the very net issues which arise for determination on this appeal.

3 The appellants commenced judicial review proceedings which were heard in the High Court by Haughton J. A very large number of points were raised, and in a careful judgment, Haughton J. dismissed the challenge on each ground, and refused a certificate of leave to appeal to the Court of Appeal. This court granted leave to appeal on one issue only relating to the question of the application of guidelines under s. 28 of the Planning and Development Act 2000 (as amended) (“the 2000 Act”). As a result, this appeal has been focussed on a single issue which now emerges in sharp, and perhaps unrealistic, relief having regard to the large number of other issues that were debated before the Board, and subsequently the legal issues addressed in the High Court.

4 Under s. 28 of the 2000 Act, the Department, which is now the Department of Environment, Community and Local Government, may issue guidelines for use by planning authorities and the respondent Board. The statutory obligation imposed on the planning authorities and the Board is to “have regard” to such guidelines. In this respect, standard s. 28 guidelines may be contrasted with policy guidelines issued under s. 29 of the Act, which planning authorities must implement. The clear distinction is blurred somewhat because of a subsequent amendment to s. 28 which provided that where guidelines were issued on matters of policy, they also must be followed. However, it is accepted for present purposes that what were in issue here were guidelines under s. 28 simpliciter, and that the obligation on the respondent Board was merely to “have regard” to them.

The Wind Energy Development Guidelines 2006 (“W.E.D.G.”)

5 The Wind Energy Development Guidelines (“W.E.D.G.” or “the guidelines”) were issued under s. 28 in 2006. The guidelines constitute a comprehensive and impressive document dealing clearly and lucidly with the very many issues related to wind power developments. Only a portion of those guidelines deal with the question of noise which is central to the issue in this case. Para. 5.6 of the guidelines sets out guidance on that issue. Although not expressly acknowledged in the text itself, it is accepted by all parties that the technical section of this aspect of the guidelines was drawn in turn from a U.K. document entitled “The Assessment and Rating of Noise from Windfarms” issued by the Energy Technology Support Unit (“ETSU”) of the Department of Trade and Industry U.K. a decade earlier, in 1996.

6 The W.E.D.G. observe at p. 29 that “[a]n appropriate balance must be achieved between power generation and noise impact”. Indeed, that balance can be said to lie at the heart of this case. It is necessary to set out one portion of those guidelines in greater detail:-

“In general, a lower fixed limit of 45 dB(A) or a maximum increase of 5dB(A) above background noise at nearby noise sensitive locations is considered appropriate to provide protection to wind energy development neighbours. However, in very quiet areas, the use of a margin of 5dB(A) above background noise at nearby noise sensitive properties is not necessary to offer a reasonable degree of protection and may unduly restrict wind energy developments which should be recognised as having wider national and global benefits. Instead, in low noise environments where background noise is less than 30 dB(A), it is recommended that the daytime level of the LA90, 10min of the wind energy development noise be limited to an absolute level within the range of 35-40 dB(A).

Separate noise limits should apply for day time and for night time. During the night the protection of external amenity becomes less important and the emphasis should be on preventing sleep disturbance. A fixed limit of 43dB(A) will protect sleep inside properties during the night.

In general, noise is unlikely to be a significant problem where the distance from the nearest turbine to any noise sensitive property is more than 500 metres.”

A footnote also helpfully explains that the unit of measure of here is an “A” weighted decibel, which is a measure of the overall noise level of sound across the audible frequency range (20HZ-20 kHz) with A frequency weighting to compensate for the varying sensitivity of the human ear to sound at different frequencies. The decibel scale is logarithmic. A 10 dB(A) increase in sound level represents a doubling of loudness. A change of 3 dB(A) is the minimum perceptible under normal circumstances.

7 It is not in dispute that the key components of the guidelines in this respect, namely the use of an “A” weighted decibel for measurements, the recommendation of both fixed limits and an increasable background noise limit, the daytime fixed limit of 45 dB(A) and nighttime limit of 43 dB(A), and the observation that there should be no significant problem when the distance from the nearest turbine to any noise sensitive property is more than 500 metres, are all derived from the 1996 ETSU document.

8 The notice party submitted a very detailed Environmental Impact Survey (“E.I.S.”). The noise and vibration portion was contained in chapter 9 and runs to 57 pages. At para. 9.2.2, the E.I.S. addresses the W.E.D.G., which it acknowledges is based in this respect on the ETSU document, and observes that, while the W.E.D.G. acknowledge that an appropriate balance must be achieved, the guidelines “give no specific advice in relation to what constitutes an ‘appropriate balance’“, and “[i]n the absence of this guidance will be taken from alternative and appropriate publications”. The E.I.S. identifies the 45 dB(A) daytime absolute limit and 43 dB(A) nighttime limit contained in W.E.D.G., and observes, however, that a previous planning permission from An Bord Pleanála for the site (which was still active at the time of preparation of the E.I.S.) imposed a flat limit of 43 dB(A).

9 The E.I.S. also made reference under the heading “Future Potential Guidance Changes” to proposed changes to the assessment of noise impacts as outlined in a Department document entitled Proposed Revisions to Wind Energy Development Guidelines 2006 – Targeted Review in relation to Noise, Proximity and Shadow Flicker (December 11, 2013). The E.I.S. recorded that a consultation process in relation to the document is currently being undertaken by the Department, and new formal guidelines had not been issued at the time of submission of the E.I.S. The consultation document, however, proposed amendments, the most significant of which was that a flat noise limit of 40 dB should be applied both day and night “in order to restrict noise from wind turbines at noise sensitive properties”. The proposed approach, however, also suggested no noise limit at the properties of landowners with a financial interest in the proposed project. The E.I.S. also made reference to the assessment in the ETSU document and then proposed that:-

“Due to the fact that there is a planning permission associated with the site for a development of a wind energy development, that if constructed, will operate the specific knowledge condition it is proposed to adopt a lower daytime threshold of 43 dB … in this instance.”

10 The E.I.S. carried out detailed modelling of the noise at various standardised wind speeds at a number of...