Balz v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Clarke C.J.,Charleton J.,O'Malley J.
• Judgment Date: 14 February 2019
• Neutral Citation: [2019] IESCDET 39
• Court: Supreme Court
• Date: 14 February 2019

[2019] IESCDET 39

THE SUPREME COURT

DETERMINATION

Clarke C.J.

Charleton J.

O'Malley J.

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN/

KLAUS BALZ AND HANNAH HEUBACH

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CORK COUNTY COUNCIL AND CLEANRATH WINDFARM LIMITED

NOTICE PARTIES

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Applicants to appeal to this Court directly from the High Court.

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: High Court

DATE OF ORDER: 18th October, 2018

DATE OF PERFECTION OF ORDER: 30th October, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 23rd November, 2018 AND WAS IN TIME.

REASONS GIVEN:

1 1. This leapfrog application is for leave to appeal against a decision upholding the validity of a permission granted by the Board for a windfarm (see Balz and Heubach v An Bord Pleanála [2018] IEHC 309). The points sought to be argued relate to the manner in which the Board conducted an Environmental Impact Assessment and concern the status of ministerial guidelines and the proper consideration by the Board of submissions on such guidelines by members of the public.

General Considerations

2 The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called “leapfrog appeal” direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

3 The application for leave filed, and the respondent's notice thereto, are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.

Background

4 In 2006 the Department of the Environment issued ‘Wind Energy Development Guidelines’ (‘WEDG’) for the use of planning authorities. These are statutory guidelines, issued pursuant to s.28 of the Planning and Development Act 2000 (and were based on a 1996 publication by the UK Department of Trade and Industry referred to as the ‘ETSU’ document). Planning authorities are required by s. 28 to ‘have regard’ to any such guidelines in the performance of their functions. According to the judgment, the WEDG have been under review since 2013. The WEDG state that, inter alia, noise from turbines at a distance of 500m, with a limit of 45dB, is unlikely to be a significant problem.

5 The appellants, who live about 635m from the site of one of the proposed turbines, made submissions to the Board to the effect that the WEDG are out of date and unfit for purpose in respect of the noise associated with windfarms. The submissions were accompanied by a range of scientific material, summarised in the judgment. A particular concern was expressed in relation to the phenomenon of amplitude modulation....