Balz v an Bord Pleanála

 
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[2018] IEHC 309

THE HIGH COURT

JUDICIAL REVIEW

Haughton Robert J.

Record No: 2017/558 JR

2017/144 COM

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

Between:
KLAUS BALZ

AND

HANNA HEUBACH
APPLICANTS
- and -
AN BORD PLEANÁLA
RESPONDENT
- and -
CORK COUNTY COUNCIL
FIRST NAMED NOTICE PARTY
- and –
CLEANWRATH WINDFARM LTD
SECOND NAMED NOTICE PARTY

Planning permission – Judicial review – Environmental impact assessment – Applicants seeking judicial review – Whether the respondent was required to examine, analyse, evaluate and assess each and every submission and scientific paper put before it for the purposes of an environmental impact assessment

Facts: The respondent, An Bord Pleanála, granted planning permission to the second notice party, Cleanrath Windfarm Ltd, for the construction of a Windfarm at Cleanrath, Inchigeelagh, County Cork. That planning permission was appealed by the applicants, Mr Balz and Ms Heubach, who were most concerned with the noise impact due to the proximity of their family home to the development. The Board officially issued the grant of permission on the 19 May, 2017, and the applicants sought and were granted leave to judicially review the decision. The main issues to be decided by the High Court were as follows: 1) Was the Board required to examine, analyse, evaluate and assess each and every submission and scientific paper put before it for the purposes of an environmental impact assessment (EIA)? 2) Did the Board examine, analyse, evaluate and assess the applicants’ submissions and scientific evidence in relation to amplitude modulation (AM)? 3) Did the failure of the Board to adopt the Inspector’s recommended Condition 6 in full invalidate the decision? 4) Was the Inspector entitled to conclude that there would be no adverse effect on the Gearagh SAC in circumstances where the cause of historic erosion was uncertain?

Held by Haughton J that the Board was entitled to proceed on the same basis as the Inspector and decide to grant permission based on the noise advice and limits that feature in the 2006 Wind Energy Development Guidelines, and to condition the grant accordingly. Haughton J was also satisfied that the Board was entitled to adopt the Inspector’s report, and that it carried out an EIA that was adequately recorded in the decision. Haughton J held that there was no evidence that the Inspector did not consider the applicants’ appeal submission or the scientific papers submitted dealing with AM. Haughton J held that the effect of Condition 1(b) was to incorporate mitigation measures which contained obligations that were enforceable in law against the developer. Haughton J held that the Board, in carrying out the appropriate assessment, had regard to the best scientific (hydrological) knowledge in accepting that the mitigation measures would have the effect that the proposed development would not affect the integrity of the Gearagh SAC; specifically it had regard to the Nature Impact Statement, the submissions of the parties to the appeal including those relating to the Gearagh SAC and SPA, the mitigation measures proposed and the content of the Inspector’s report. Haughton J held that the Board was in a position to make complete, precise and definitive findings in this regard, and that there were no gaps in the evidence relevant to deciding this question.

Haughton J held that the application for judicial review should be dismissed.

Application dismissed.

Judgment of Mr Justice Robert Haughton delivered this 30 th day of May, 2018.
Index
Paragraph Title
2

Background

7

The Impugned Decision

11

Complaints not pursued

17

Remaining grounds

19

Complaints in relation to EIA

24

Submissions and scientific papers relied on by applicants in relation to ETSU-R-97/WEDG 2006 and Amplitude Modulation

32

The Amplitude Modulation Materials

34

Condition 6 recommended by Inspector

36

Submissions of the Respondent (the Board): Failure to carry out or record an EIA

37

Failure to have proper regard to submissions

43

Appropriate Assessment: Adopting the Inspector's Report

45

Uncertainty and the Best Scientific Evidence

49

Submissions of the Notice Party (Cleanrath)

53

The issues

54

1) Was the Board required to examine, analyse, evaluate and assess each and every submission and scientific paper put before it for the purposes of an EIA?

58

Discussion

74

2) Did the Board examine, analyse, evaluate and assess the applicants' submissions and scientific evidence in relation to amplitude modulation?

77

Cleanrath EIS/Evidence to the Board on AM/OAM

79

Discussion

81

3) Does the failure of the Board to adopt the Inspector's recommended Condition 6 in full invalidate the decision?

88

4) Was the Inspector entitled to conclude that there would be no adverse effect on the Gearagh SAC and SPA in circumstances where the cause of historic erosion is uncertain?

94

Discussion

1

These proceedings arise out of a decision by the respondent, An Bord Pleanála (‘the Board’) to grant planning permission to the second named notice party, Cleanrath Windfarm Limited (‘Cleanrath’) for the construction of a Windfarm at Cleanrath, Inchigeelagh, County Cork.

Background
2

The development the subject of this application has a history having been before this Court on one previous occasion already. The developer originally applied for planning permission on 22 November, 2015, for a development comprising of eleven wind turbines. Although planning permission was initially granted for the development, that decision was subsequently quashed by the High Court on 25 February, 2016.

3

Planning permission was once again sought for the development, and was opposed, inter alia, by the applicants. The applicants are a married couple who since 1992 made their home at Bear na Gaoithe some 637 metres from what would be the closest turbine, and they run a family horticulture nursery/florist/gardening business from their property.

4

Planning permission was granted by Cork County Council on 3 June, 2016, subject to 40 conditions; Condition No.2 required the exclusion of five wind turbines, thus allowing six turbines, with a maximum ground-to-blade tip height of 150 metres. The development will involve roadworks, quarrying, excavation for underground cabling, grid connection works, works on the public road along the delivery route, an electricity substation, a control building, construction compound and ancillary works.

5

That planning permission was appealed by four parties, including the applicants; Cleanrath appealed Condition No.2. The applicants aver that their appeal was ‘professionally prepared’ and it was accompanied by scientific materials. The applicants were most concerned with the noise impact due to the proximity of their family home to the development and the fact that they carry on their own business from their home.

6

The submission of appeals and circulation of Cleanrath's responses dated 3 August, 2016 to the appeals, occurred from June 2016 to August 2016. Mr. Balz avers that the applicants did not receive a copy of Cleanrath's response. On 4 August, 2016, an Inspector was appointed by the Board pursuant to s.146 of the Planning and Development Act, 2000 (as amended) (‘PDA 2000’). The Inspector carried out site visits on the 7 and 8 September, 2016 and the 4 and 5 November, 2016. The Inspector compiled a report for the Board dated 18 November, 2016. The matter was not again considered by the Board until the 6 April, 2017, when the Board decided to defer the matter until a meeting of the 25 April, 2017.

The impugned decision
7

The Board Direction dated 16 May, 2017, recording its decision on 25 April, 2017, records that:

‘The Board decided by a 3:1 majority to grant permission generally in accordance with the Inspector's recommendation and subject to the reasons, considerations and conditions set out below’.

The planning permission thus granted is for 11 turbines, rather than the 6 permitted by Cork County Council, and is subject to 22 conditions.

8

The Board Direction records that the Board ‘had regard to the following…’ and thereafter lists inter alia

‘(b) the provisions of the ‘Wind Energy Development Guidelines – Guidelines for Planning Authorities’ issued by the Department of the Environment, Heritage and Local Government in 2006,

(i) The distances from the proposed development to dwellings or other sensitive receptors,

(j) the range of mitigation measures set out in the documentation received, including the Environmental Impact Statement, the Natura Impact Statement, the further information response submitted to the planning authority on April 12th, 2016 and the further submissions from the applicant to the Board,

(l) the submissions and observations made in connection with the planning application and the appeal, including submissions in relation to the environmental and Natura impacts of the proposed development and the detailed submissions made in respect of the Gearagh SAC and SPA, and

(m) the report of the planning inspector’.

9

As to Environmental Impact Assessment the Board Direction states:

‘The Board considered that the...

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