Carroll v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Fullam
• Judgment Date: 11 February 2016
• Neutral Citation: [2016] IEHC 90
• Docket Number: [2014/475JR]
• Court: High Court
• Date: 11 February 2016

BETWEEN

STEPHEN CARROLL, JOANNE ADDIE & PETER SWEETMAN

APPLICANTS

AND

AN BORD PLEANALA

RESPONDENT

AND

GREEN WIND ENERGY (WEXFORD) LIMITED

NOTICE PARTY

AND

OFFALY COUNTY COUNCIL

NOTICE PARTY

[2016] IEHC 90

Fullam J.

[2014/475JR]

THE HIGH COURT

JUDICIAL REVIEW

Local government – Planning & Development – The Planning and Development (Amendment) Act, 2010 – Directive 2011/92/EU – Environment Impact Assessment – Habitats Directive (92/43/EEC) – Birds Directive (79/409/EEC)

Facts: The applicants sought an order of certiorari for quashing the decision of the respondent for granting planning permission to the first named notice party for development of electricity-generating wind turbines. The applicants alleged that the decision of the respondent was in contravention of Directive 2011/92/EU as no proper EIA had been carried out.

Mr. Justice Fullam dismissed the proceedings of the applicants. The Court held that it had no power to interfere with the decision of an administrative decision-making authority such as the respondent unless it was evident that such authority had acted irrationally. The Court observed that s. 172 (1H) of the Planning and Development (Amendment) Act, 2010 permitted the respondent to adopt the report of the inspector in whole or in part and in the present case, the respondent adequately considered the EIA carried out by the inspector. The Court held that EIA under art. 3 of the Directive 85/337 did not include an assessment of the effects which the proposed project had on the value of material assets. The Court however, observed that the said Directive 85/337 did provide an effective remedy by way of pecuniary damages if the decrease in value of asset was a direct consequence of the proposed project. The Court found that the applicants presented no evidence that their homes had become less capable of fulfilling the function of the homes as a result of the proposed project. The Court held that the respondent was not obliged to fulfil its obligations under art. 6 of the Habitats Directive for carrying out the appropriate assessment as the whooper swan, a species specified under Birds Directive did not have a qualifying interest in any designated European site.

JUDGMENT of Mr. Justice Fullam delivered the 11th day of February 2016

Factual Background

1 This is an application for judicial review pursuant to s.50 of the Planning and Development Act, 2000, in which the applicants seek a primary order of certiorari quashing the decision of the respondent (‘the Board’) made on the 3rd June, 2014, to grant planning permission to the first named notice party, Green Wind Energy (Wexford) Limited (‘GWE’) for 29 wind turbines and ancillary development north of Rhode, County Offaly.

2 The first applicant is a tiling contractor and resides at Bunsallagh, Croghan, Rhode Co. Offaly, the second applicant is a homemaker and resides at Ballyburly, Rhode, Co. Offaly. The third applicant is an environmentalist and resides in Cashel, Connemara Co. Galway.

3 The Board granted permission pursuant to s.37G of the Planning and Development Act, 2000 (PDA), as amended, for the development of 29 electricity-generating wind turbines with a maximum tip height of up to 166 metres, hard standings, a 110kV substation containing two control buildings, an electrical compound and a waste water holding tank, 9 water course crossings, temporary construction compound, a permanent meteorological mast, a new access road off the R400 roundabout and upgraded access roads, associated site roads, drainage and site works, all located on a site in the townlands of Derryarkin, Derryiron, Coolcor, Coolville, Ballyburly, Greenhills, Bunsallagh, Derrygreenagh, Knockdrin Wood, Killowen, Corbetstown, Carrick Garr and Dunville, close to the Westmeath and Offaly border.

4 The applicants further seek declaratory relief that the Board was in breach of Directive 2011/92/EU of the European Parliament and of the Council of 13th December, 2011 on the assessment of the effects of certain public and private projects on the environment, O.J. L26/1 28.01.2012 (Environmental Impact Assessment Directive) and specifically Articles 3 and 8 thereof; and,

5 A declaration that a ‘screening for appropriate assessment’ exercise purportedly carried out by the respondent was in breach of Council Directive 92/43 E.E.C. of 21st May, 1992 on the conservation of natural habitats and wild fauna and flora, O.J. L206/7 22.07.1992 (Habitats Directive) incorporating the Birds Directive by taking mitigation measures into account.

6 GWE supports the respondent in opposing the application. Offaly County Council, the second notice party, has not participated in these proceedings. However, as will appear, it did take an active role in the planning decision process by way of submission of detailed questions, suggestions and recommendations which were accepted by GWE and its consultant engineers.

Background to Grant of Permission

7 Wind energy production is part of the national energy policy aimed at reducing dependency on fossil fuel imports, developing sustainable and competitive energy supplies and underpinning the move towards a low-carbon economy. In 2006, the Department of the Environment published ‘ Guidelines for Planning Authorities on Wind Farm Development and Wind Energy Development’ to assist the proper planning of wind power projects throughout the country. The preference for wind energy can be seen from The County Offaly Development Plan 2009-2015 where it states that:-

‘It is council policy to facilitate the continual development of renewable energy sources having regard to the proper planning and sustainable development of the area, having particular regard to amenities, landscape sensitivities and the protection of habitats and heritage, where such proposals comply with policy contained in the County Development Plan.’

8 The County Offaly Wind Strategy 2015 identifies 12 areas examined for potential wind farm development. Area no. 1 is ‘north of Rhode’. The document states:-

‘Having regard to proximity to an existing substation, access roads, cut over bog, large land holdings, precedent of existing visually intrusive infrastructure, this area is highly suitable. There is some sensitivity to the overlooking of the western portion of this area from protected views.’

9 The planning application in respect of this development was made directly to the Board in accordance with s.37A of the PDA 2000, as amended, by the Planning and Development (Strategic Infrastructure) Act, 2006. Under the legislation, an applicant is obliged at the outset to consult with the Board and if the Board is of the opinion that the development constitutes a category of infrastructure project specified in the Seventh Schedule and complies with one or more of the three criteria set out in s.37A(2) of the PDA, it shall notify the applicant of same. The notification is the trigger for the formal application.

10 In the present case, GWE first carried out environmental studies. It then consulted with Offaly County Council in 2010 and applied to Eirgrid for a connection in April 2012. Subsequent to this, pursuant to s.37B of the PDA it commenced pre-planning consultations with the Board in October 2012. In December 2012, GWE conducted a public consultation meeting at Rhode. In March 2013, the Department of the Environment, Community and Local Government published Draft Guidelines on carrying out Environmental Impact Assessments. In June and September of 2013 further pre-planning consultations were held between GWE and the Board. On 31st October, the Board made an order that Yellow River Wind Farm was strategic infrastructure. On 28th November, 2013, GWE applied to the Board for permission for the development of a wind farm comprising 32 turbines.

11 The application was accompanied by an Environmental Impact Statement (EIS) and an Appropriate Assessment Screening Report (also referred to as Natura Impact Statement) (NIS) prepared by Dr. John Madden dated 19th November, 2013. Dr Madden's report is stated to have been prepared in accordance with, inter alia, ‘ The Guidance for Planning Authorities relating to Appropriate Assessment’ issued by the Department of Environment, Heritage and Local Government (December 2009). The report listed eight European sites comprising six Special Areas of Conservation (SAC) and two Special Protection Areas (SPA), within 15Km of the development which could be potentially affected by the project, namely; Lough Ennell SAC, Lough Ennell SPA, River Boyne and River Blackwater SAC, River Boyne and River Blackwater SPA, Raheenmore Bog SAC, Mount Hevey Bog SAC, Split Hills and Mount Esker SAC, and The Long Derries SAC. The Whooper Swan ( Cygnus cygnus), which is a listed species under Annex 1 of Council Directive 2009/147/EC of the European Parliament and of the Council of 30th November, 2009 on the conservation of wild birds, O.J. L20/7 26.01.10 (Birds Directive), does not have a qualifying interest in any of these sites.

12 Observations and submissions were invited from the public and specific statutory consultees. Following receipt of observations and submissions, the Board, by letter dated 13th March, invited the developer, GWE, to make its response. The format of GWE's response to submissions of 3rd April, 2014, was an extensive document in two sections. Section 1 contained the response to statutory consultees, common issues raised by third parties and individual third party issues. Section 2 contained the response to suggestions made by the Offaly County Manager. The manager's recommendations included:-

• the omission of a small number of turbines;

• the relocation of other turbines;

• the reduction in height of a number of turbines;

• the consideration of a general noise limit proposed by the 2013 Draft Guidelines, and;

• a limit implementing a similar...