Barna Wind Action Group v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 17 April 2020
• Neutral Citation: [2020] IEHC 177
• Date: 17 April 2020
• Docket Number: [2019 No. 318 J.R.]
• Court: High Court

BETWEEN

BARNA WIND ACTION GROUP

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENTS

AND

CORK COUNTY COUNCIL

ARRAN WINDFARM LIMITED

BARNA WIND ENERGY (B.W.E) LIMITED

NOTICE PARTIES

[2020] IEHC 177

Denis McDonald J.

[2019 No. 318 J.R.]

THE HIGH COURT

COMMERCIAL

JUDICIAL REVIEW

Judicial review – Remittal – Prejudice – Applicant seeking an order of certiorari quashing two decisions of the respondent – Whether it would be inappropriate to remit the matters to the respondent

Facts: The respondent, An Bord Pleanála (the Board), initially contested the claim of the applicant, Barna Wind Action Group, for orders quashing the Board’s decision dated 2nd April, 2019 to grant permission to the third notice party, Barna Wind Energy (BWE) Ltd (the developer), for the construction of a windfarm at Terelton, Co. Cork together with its decision of the same date granting permission to the second notice party, Arran Windfarm Ltd, for the construction of an associated electricity sub-station compound. However, following the decision of the Supreme Court in Balz v An Bord Pleanala [2019] IESC 90, the Board decided to consent to the orders of certiorari sought. A draft court order was prepared by the Board which was circulated to all of the parties in which, in addition to providing for the orders of certiorari, it was also proposed that the court would remit both of the underlying applications for permission to the Board to be determined in accordance with law. The proposal to remit the matters to the Board was supported by the developer but was opposed by the applicant. The applicant submitted that, having regard to the length of time which had elapsed since the applications for planning permission were first made, it would be wholly inappropriate to remit the matter to the Board. The applicant submitted that remittal was particularly inappropriate in circumstances where Directive 2011/92/EU (the 2011 EIA Directive) had been amended significantly in the intervening period by Directive 2014/52/EU (the 2014 Directive) which was implemented by the State on 1st September, 2018 by virtue of the European Union (Planning & Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018).

Held by the High Court (McDonald J) that, weighing in favour of remittal, there was an obvious prejudice to the developer who had not caused any of the errors made by the Board, the consideration evident in the principles set out in the judgment of Barniville J in Clonres v An Bord Pleanala [2018] IEHC 473 that the court should endeavour to avoid an unnecessary reproduction of a legitimate process and the fact that the Board (which, in accordance with the Clonres principles, should be treated as a disinterested party) had taken the view that it could carry out its statutory functions in the event that a remittal was ordered. McDonald J held that weighing against remittal were the concerns about the passage of time, the uncertainty as to whether the amendments made by the 2014 Directive would apply to the future conduct of the appeals, the undesirability of assessing the 2014 applications for permission by reference to the pre-existing legal position (if it continued to apply) and the concern in relation to public participation. McDonald J held that while these considerations may carry weight in other cases, he did not believe that they were of sufficient weight in this case to displace or outweigh the factors in favour of remittal.

McDonald J held that, in addition to an order of certiorari quashing the two decisions of the Board (Ref. PL04.248153 and Ref. PL04.248152) both dated 2nd April, 2019, he would also make an order that the subject matter of both decisions be remitted to the Board pursuant to O. 84, r. 26 (4) of the Rules of the Superior Courts to be determined in accordance with law. It seemed to McDonald J to follow that the applicant must be entitled to its costs of the proceedings (but excluding pending further submissions, the costs of the application to remit), to include reserved costs, such costs to be adjudicated by the Legal Costs Adjudicator in default of agreement. In McDonald J’s view, the grounds on which certiorari should be granted were those set out in paras. 57, 63 and 64 of the statement of grounds.

Remittal granted.

JUDGMENT of Mr. Justice Denis McDonald delivered on 17 April, 2020

1 The issue to be decided in these judicial review proceedings is whether a remittal order should be made pursuant to O. 84, r. 26 (4) of the Rules of the Superior Courts. The parties are agreed that an order of certiorari should be made but the applicant contends that this is not an appropriate case in which a remittal should be ordered.

2 In this case, the Respondent (“the Board”) initially delivered a comprehensive statement of opposition in which it fully contested the applicant's claim for orders quashing the Board's decision dated 2nd April, 2019 to grant permission to the third named notice party (“the developer”) for the construction of a windfarm at Terelton, Co. Cork together with its decision of the same date granting permission to the second named notice party (“Arran”) for the construction of an associated electricity sub-station compound. However, following the decision of the Supreme Court in Balz v. An Bord Pleanala [2019] IESC 90, the Board decided to consent to the orders of certiorari sought. In Balz, the Supreme Court ruled that the Board had erred in failing to pay adequate regard to submissions made to it that the Wind Energy Development Guidelines 2006 (“the 2006 Guidelines”) were outdated and should not be followed. The Supreme Court concluded that the inspector appointed by the Board, was incorrect in rejecting the submissions in relation to the 2006 Guidelines without giving any consideration to those submissions. In turn, the Board's decision was held to be invalid as it had adopted the inspector's report. In the present case, a similar approach was taken by the inspector who, having summarised the submissions made in respect of the 2006 Guidelines, concluded that: “the national guidance prevails and it would be unacceptable for the Board to pursue any alternative”. The inspector's approach was followed by the Board.

3 A draft court order was prepared by the Board which was circulated to all of the parties in which, in addition to providing for the orders of certiorari, it was also proposed that the court would remit both of the underlying applications for permission to the Board to be determined in accordance with law. The proposal to remit the matters to the Board is supported by the developer but is strongly opposed by the applicant although the applicant, very properly, accepts that the court has jurisdiction to remit the applications to the Board pursuant to O. 84 r. 26 (4) of the Superior Court Rules.

4 The applicant submits that, having regard to the length of time which has elapsed since the applications for planning permission were first made, it would be wholly inappropriate to remit the matter to the Board. The applicant submits that remittal is particularly inappropriate in circumstances where Directive 2011/92/EU (“the 2011 EIA Directive”) has been amended significantly in the intervening period by Directive 2014/52/EU (“the 2014 Directive”) which was implemented by the State on 1st September, 2018 by virtue of the European Union (Planning & Development) (Environmental Impact Assessment) Regulations 2018 (S. I. No. 296 of 2018) (“the 2018 Regulations”).

5 In order to understand the concerns of the applicant in relation to the proposal to remit, it is necessary to outline the relevant underlying facts.

Relevant Facts

6 The planning applications for the sub-station and windfarm were initially lodged with the first named notice party (“the Council”) on 26th September, 2014 and 19th December, 2014 respectively. The sub-station application was not accompanied by an environmental impact statement (“EIS”) but was accompanied by an environmental report. An EIS was submitted with the application for permission in respect of the windfarm. That EIS was prepared in accordance with the requirements of the 2011 EIA Directive which, in its unamended form, was the governing EU law measure at that time. Under the transitional provisions set out in Article 3 of the 2014 Directive, applications which were initiated prior to 16th May, 2017, continue to be subject to the 2011 EIA Directive in its unamended form.

7 Following requests for further information in respect of both applications, the Council granted permission for the sub-station on 13th January, 2015 and for the windfarm on 3rd November, 2015. Both decisions were appealed to the Board which granted permission for the windfarm on 8th July, 2016 and for the sub-station on 11th July, 2016. In turn, both of those decisions were the subject of judicial review proceedings ( Larkin v. An Bord Pleanala 2016 No. 614 JR) brought by members of the applicant. In those proceedings, the Board, on 1st November, 2016 consented to an order of certiorari in respect of both of its decisions. I am informed that this was on fair procedures grounds in circumstances where there had been a failure to circulate a submission made by the developer in the windfarm appeal. Although that failure arose in the windfarm appeal, the Board consented to a similar order in respect of the sub-station appeal on the basis that its decision in that appeal was taken at the same meeting as its decision on the windfarm. By order made on 1st November, 2016, the court quashed both decisions of the Board and remitted the matters pursuant to O. 84, r. 26 (4).

8 According to the applicant, in the subsequent consideration of the appeals by the Board, submissions were requested from the applicant and both Arran and the developer responded to those submissions. Counsel for the applicant highlighted that, at no stage, during that...