Balz v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 25 February 2016
• Neutral Citation: [2016] IEHC 134
• Docket Number: [2013 No. 450 JR]
• Court: High Court
• Date: 25 February 2016

IN THE MATTER OF SECTION 50 OF

THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN

KLAUS BALZ

AND

HANNA HEUBACH

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CORK COUNTY COUNCIL

FIRST NAMED NOTICE PARTY

AND

CLEANRATH WINDFARM LTD.

SECOND NAMED NOTICE PARTIES

IN THE MATTER OF SECTION 50 OF

THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN

KLAUS BALZ

AND

HANNA HEUBACH

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CORK COUNTY COUNCIL

FIRST NAMED NOTICE PARTY

AND

CLEANRATH WINDFARM LTD.

SECOND NAMED NOTICE PARTY

[2016] IEHC 134

Barton J.

[2013 No. 450 JR]

[2013 No. 450 JR]

THE HIGH COURT

JUDICIAL REVIEW

THE HIGH COURT

JUDICIAL REVIEW

Planning & Development – S. 50 of the Planning and Development Act 2000 – Planning and Development Regulations 2001 – Environmental Impact Statement (EIS) – Directive 2011/92/EU – Appropriate Assessment (AA) – EU Council Directive 92/43/EEC

Facts: The applicants sought an order of certiorari for quashing the decision of the respondent/Board for granting planning permission to the second named notice party on appeal from the decision of the first named notice party refusing to grant the said permission on the basis of ecological and material contravention in relation to development of wind turbines on the proposed area, which was nearby the area of occupation of the applicants. The applicants contended that the respondent/Board had failed to comply with the provisions of s. 37 (2) (b) and (c) of the Planning and Development Act 2000 (PDA). The applicants submitted that the Board had failed to carry out an EIA as required by Directive 2011/92/EU (‘EIA Directive’) Part X of the PDA and an AA under art. 6 (3) of the EU Council Directive 92/43/EEC (‘Habitats Directive’).

Mr. Justice Bernard J. Barton granted an order of certiorari and other ancillary reliefs sought by the applicants. The Court held that while carrying out an EIA, the Board was required to conduct an examination, analysis, evaluation and identify the consequential effects on the matters specified under s. 171A (1) of PDA. The Court observed that when making an AA, the Board was obliged to make a determination as to whether the proposed development would adversely affect the integrity of the European site. The Court held that the provisions of s. 37 (2) (a) (b) and (c) of the PDA must be construed together to give it a plain and ordinary meaning and thus, the Board had discretion to grant planning permission under s. 37 (2) (a) without imposition of restrictions under said s. 37 (2) (b) or (c) if the Board had concluded that there was material contravention but not the planning authority. The Court found that in the present case, the Board had considered the report of the inspector; however, the Board failed to provide any reasons for differing with the opinion of the inspector on omission of certain turbines. The Court further found that the reasons given by the Board while carrying out the AA were devoid of complete and precise findings.

INDEX	PARAGRAPHS
Background	1 – 15
Order granting leave	16
Statutory framework	17
General planning requirements and procedures	18 – 23
Environmental impact assessment	24 – 28
Appropriate assessment	29 – 34
Legal requirements of an appropriate assessment	35 – 43
Appropriate assessment and reasons	44 – 48
Effects of on the decision making process relating to an EIA and AA	49
Judicial Review and planning matters	50 – 59
Section 37 (2) (b) (c) PDA	60 – 61
Material contravention – appeal to An Bord Pleanála – Statutory provisions	62 – 67
Applicant's submissions	68 – 75
Submissions of the respondent and Cleanrath	76 – 84
Decision on interpretation and applicability of s. 37 (2) (b) (c)	85 – 113
Conclusion – s. 37 (2) (b) (c)	114 – 115
EIA – applicant's submissions	116 – 130
Submissions of respondent and Cleanrath	131 – 135
Supplemental submissions	136 – 140
Inspector's report	141 – 155
Decision of the Board	156 – 157
Decision on environmental impact assessment	158 – 178
Conclusion on EIA	179 – 180
Appropriate assessment	181 – 184
Applicant submissions	185 – 202
The submissions of the respondent and Cleanrath	203 – 211
Decision on appropriate assessment	212 – 234
Conclusion on AA	235 – 239
Ruling	240

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 25th day of February, 2016

1 The first named Applicant is an owner in common of approximately 1.0344 hectares of land located at Cleanrath North, Inchigeelagh, Co. Cork. He and the second named Applicant set up home on those lands. They have three children and are engaged in the horticultural gardening and forest business.

2 On the 9th June, 2011 the second named Notice Party, Cleanrath Windfarms Ltd (Cleanrath) applied to the first named Notice Party, Cork County Council (the Council) for planning permission in respect of the development of 11 wind turbines of up to 126 meters height with ancillary structures including an 85 meter meteorological mast, a substation compound, an internal road network, two borrow pits, underground cabling, a temporary construction compound and associated works in the townlands of Cleanrath North, Cleanrath South and Derrineanig, Co. Cork.

3 On the basis of the planning application as submitted, the nearest of the wind turbines to the Applicants' home would, if erected, be located at a distance of approximately 650 meters.

4 The proposed development falls within the scope of part 5, schedule 2 of the Planning and Development Regulations 2001. Accordingly, the application for planning permission was accompanied by an Environmental Impact Statement (EIS).

5 The purpose of an EIS is to facilitate the planning authority in fulfilling its obligations under sections 171 and 172 of the Planning and Development Act, 2000, (the PDA) which, where applicable, require an Environmental Impact Assessment (EIA) to be carried out in order to determine the likely direct and indirect effects of the proposed development on the receiving environment. These provisions were enacted for the purposes of transposing into Irish law the State's obligations under Directive 2011/92/EU (The EIA Directive).

6 On the 7th July, 2011 the Applicants lodged an observation with the Council in which they outlined their opposition to the proposed development on a number of grounds including the visual and environmental impacts it would have on the immediate locality and on certain Natura 2000 sites nearby. The Council sought further information from Cleanrath. This was supplied on the 18th April, 2012. The request required, inter alia, the submission of a Natura Impact Statement (NIS) the purpose of which was to detail the likely impacts of the proposed development on any Natura 2000 habitats in the locality which were designated and protected under EU Council Directive 92/43/EEC (The Habitats Directive).

7 A number of such habitats were identified:

(i) The Gearagh Special Area of Conservation (site code 000108),

(ii) The Gearagh Special Protection Area (site code 004109); and,

(iii) Mullaghanish to Musheramore Special Protection Area (site code 004162).

8 Section 177 of the Planning and Development Act 2000 gives effect to the Habitats Directive by requiring the planning authority or, on appeal, An Board Pleanala (the Board) to carry out an Appropriate Assessment (AA) pursuant to which it is obliged to consider and make a determination in respect of the potential impacts which the proposed development would or might likely have on any nearby ‘Natura 2000’ sites. The submission of the NIS by Cleanrath was designed to assist the planning authority in carrying out such an assessment.

9 On the 8th June 2012, the Council refused planning permission for three stated reasons which may be summarized as follows:

(1) The proposed development would be premature by reference to the existing deficiency in the road networks serving the area of the proposed development; details of which were set out and as a result of which the Council concluded that the proposed development would be contrary to the proper planning and sustainable planning of the area.

(2) The proposed development would be partly located within habitats of high conservation value, which included habitats listed on annex 1 of the Habitats Directive, such as active Blanket Bog, Dry Heath, North Atlantic Wet Heath and Erica Tetralix which were key features of the County ecological network. The County of Cork Development Plan 2009 has a stated objective under ENV 19 to minimize the impact of new developments on habitats of natural value that are key features of the ecological network in the County. For reasons which were set out, the Council considered that the proposed development would materially contravene the stated objective of the county development plan and, hence, be contrary to the proper planning and sustainable development of the area.

(3) The site of the proposed development was located within the zone of influence of areas of ecological sensitivity, which included lands designated as Special Areas of Conservation (SAC) and Special Protection Areas (SPA). On the basis of the information submitted the Council was not satisfied that the proposed development would not have significant negative impacts on habitats of ecological value designated for conservation and protection and on the integrity of any Natura 2000 site. In its view the NIS lacked sufficient information to enable an AA to be completed in accordance with the requirements of the PDA, as amended, and accordingly the development would conflict with the conservation objective of the development plan and would be contrary to the proper planning and sustainable planning of the area.

10 On the 5th July, 2012 Cleanrath appealed the decision of the Council to the Board.

11 The first named Applicant did...