O'Brien v an Bord Pleanála

JurisdictionIreland
JudgeMs. Justice Costello
Judgment Date19 December 2017
Neutral Citation[2017] IEHC 773
Docket Number[2017 No. 336 J.R.]
CourtHigh Court
Date19 December 2017

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000 AS AMENDED

BETWEEN
CLAIRE O'BRIEN

AND

PATRICK O'BRIEN
APPLICANTS
AND
AN BORD PLEANAA
RESPONDENT
AND
LEONARD DRAPER
NOTICE PARTY

[2017] IEHC 773

Costello J.

[2017 No. 336 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Environment, Construction & Planning - S. 50 of the Planning and Development Act 2000 - Development consent - EIA Directive - Public interest - Certiorari

Facts: The applicants in the proceedings sought an order of certiorari for quashing the decision of the respondent ('Board') for granting substitute consent for a wind farm to the notice party ('the developer'). The applicants contended that the Board did not engage with the noise report of the applicants' expert; used the incorrect baseline for measuring noise; and failed to consider the impact of noise on the local residents arising out from the wind farm. The applicants also contended that the Board failed to record the reasons for its decision in breach of its obligations under the EIA Directive and the Act of 2000. The Board contended that in making its decision, it had regard to those matters, which it was required to have regard including any submissions and observations received by it in accordance with the statutory provisions.

Ms. Justice Costello dismissed the application of the applicants. The Court held that the facts did not support the applicants' case. The Court was satisfied that the developer presented information to establish the baseline for the noise environment for the project reflecting the situation prior to the construction of the turbines. The Court held that the precise hazard posed by the increased noise in the development imposed a strict standard on the developer in order to ensure that there was no undue damage to existing amenities. The Court was satisfied that the developer presented information to establish the baseline for the noise environment and that baseline was considered in the report.

JUDGMENT of Ms. Justice Costello delivered on the day of, 2017
Introduction
1

This is an application for an order of certiorari quashing the decision of An Bord Pleanála ('the Board') on the 2nd March, 2017 granting the notice party ('the developer') substitute consent for a wind farm at Garranure, Kilvinane and Carrigeen, Ballynacarriga, Dunmanway, County Cork (the Kilvinane wind farm). The order is sought on the basis that the Board failed to carry out an Environmental Impact Assessment (EIA) in accordance with s.172 of the Planning and Development Act, 2000 as amended (the Act of 2000) as interpreted in accordance with the obligations imposed by Article 3 of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (the EIA Directive).

Background
2

The planning history of the Kilvinane wind farm is complex and is fully set out in the decision of the Court of Appeal in Bailey v. Kilvinane Wind Farm Ltd [2016] IECA 92 by Hogan J. at paras. 4 to 37. I do not propose to repeat the detail of the planning history and shall confine myself in this judgment to the facts relevant to the issues in this case.

3

On the 19th July, 2002 the Board granted planning permission (PL 04.127137) ('the 2002 planning permission') to the developer for a wind farm consisting of four turbines with a hub height of 65 metres and blade length of 28.5 metres (an overall height of 93.5 metres) at Kilvinane, County Cork. Between March 2003 and October 2005 the developer wrote to the planning authority seeking approval for a number of alterations to the permitted development: an increase in the proposed blade length, a variation of the hub height from 65 metres down to 60 metres and a reduction in the number of turbines from four to three. The planning authority accepted the modifications and additionally granted the alteration of the permitted positions of each of the turbines by up to 20 metres from each permitted position.

4

The developer erected three turbines in accordance with the modifications to the 2002 planning permission accepted by the planning authority and in October 2006 the Kilvinane wind farm was connected to the national grid.

5

On the 27th April, 2011 the applicants sought a declaration under s.5 of the Act of 2000 as to whether the erection of the three turbines as built was or was not development and whether it was exempt development. The planning authority decided that the erection of the turbines was development and that it was exempted development. On appeal, the Board concluded that the development as constructed was not exempted development.

6

Ultimately, on the 16th March, 2016 the Court of Appeal held in Bailey v. Kilvinane Wind Farm Ltd that the turbines as constructed were unauthorised development having regard to the extent of the deviation from the 2002 planning permission in terms of location and (save as to turbine one) rotor diameter.

7

By order dated 21st April, 2015 the Board granted the developer leave to apply for substitute consent of the Kilvinane wind farm under s.177D of the Act of 2000 on the basis that exceptional circumstances existed and in particular that the developer could reasonably have had a belief that the development was not unauthorised. On the 14th October, 2015 the developer applied for substitute consent. The application for substitute consent was accompanied by a remedial Environmental Impact Statement (rEIS). On 23rd June, 2016 the Board requested the developer to submit further information including a revised rEIS to include information in respect of the existing connection to the national grid including the corridor for connection, the nature of the connection (distance, route, overground and/or underground), pole/tower type and height(s), line voltage and the cumulative effects of the wind farm and the grid connection. A revised rEIS was submitted to the Board on the 29th July, 2016.

8

The applicants made submissions to the Board in respect of the application for substitute consent and in respect of both the rEIS and the revised rEIS.

9

By order dated 2nd March, 2017 the Board granted the developer substitute consent for the Kilvinane wind farm. Under s.177O(1) of the Act of 2000 a grant of substitute consent has the effect as if it were a permission granted under s.34 of the Act of 2000. Further, development in compliance with a substitute consent or any condition to which it is subject is deemed to be authorised development.

10

On the 24th April, 2017 Noonan J. granted the applicants leave to seek judicial review of the decision of the Board of the 2nd March, 2017.

The Applicants' Case
11

The applicants work as a farmer and a music teacher respectively, and they lived just over 500m from the nearest turbine with their three children until they moved due to the noise of the wind farm. The details of their complaints in relation to noise we set out in the judgment I gave previously in this proceedings on an application to lift the stay on the operation of the wind farm in July of this year. The applicants' arguments can be divided into two categories. Firstly, the applicants advance the argument that the Board failed to carry out an EIA in accordance with the requirements of the EIA Directive and the Act of 2000. The applicants' arguments under this heading are based on three contentions: that the Board did not engage with the noise report of the applicants' expert, Mr. Bowdler; that the incorrect baseline for measuring noise was used by the Inspector and the Board and that the Board failed to have regard to the experience of local residents, and in particular the applicants of the impact of the noise arising from the wind farm. Secondly they contend that the Board failed to record the reasons for its decision in breach of its obligations under the EIA Directive and the Act of 2000.

Obligation to Carry out an EIA
12

An EIA is defined in s.171A(1) of the Act of 2000 as: -

'an assessment, which includes an examination, analysis and evaluation, carried out by a planning authority or the Board, as the case may be, in accordance with this Part and regulations made thereunder, that shall identify, describe and assess in an appropriate manner, in light of each individual case and in accordance with Articles 4 to 11 of the Environmental Impact Assessment Directive, the direct and indirect effects of a proposed development on the following:

(a) human beings, flora and fauna,

(b) soil, water, air, climate and the landscape,

(c) material assets and the cultural heritage and

(d) the interaction between the factors mentioned in paragraphs (a), (b) and (c).'

13

Section 172(1) and (1A) of the Act of 2000 requires an EIA to be carried out in respect of an application for substitute consent. Section 177E requires the applicant for substitute consent to submit a remedial EIS to the Board. Section 172 (1G) provides: -

'In carrying out an environmental impact assessment under this section the planning authority or the Board, as the case may be, shall consider '

(a) the environmental impact assessment;

(b) any further information furnished to the planning authority or the Board pursuant to subsections (1D) or (1E);

(c) any submissions or observations validly made in relation to the environmental effects of the proposed development;

(d) the views, if any, provided by any other Member State under section 174 or Regulations made under that section.'

14

Under s.172(1H) of the Act of 2000 the Board is entitled to have regard to and adopt in whole or in part any reports prepared by its officials or by consultants, experts or other advisors. Where the Board decides to grant consent for a proposed development it may, under s.172(1I) of the Act of 2000, attach ' such conditions to the grant as it considers necessary, to avoid, reduce and, if possible, offset the...

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