Carrownagowan Concern Group and Others v an Bord Pleanala and Others

JurisdictionIreland
JudgeHumphreys J.
Judgment Date20 May 2024
Neutral Citation[2024] IEHC 300
CourtHigh Court
Docket Number[H.JR.2022.1022]

In the Matter of Section 50 of the Planning and Development Act 2000 (As Amended)

Between
Carrownagowan Concern Group, UTE Rumberger and Nicola Henley
Applicants
and
An Bord Pleanála, Coillte Cuideachta GhníomhaíOchta Ainmnithe, The Minister for Housing, Local Government and Heritage, The Minister for Agriculture, Food and The Marine, Ireland, The Attorney General and Clare County Council
Respondents

and

Futurenergy Carrownagowan Designated Activity Company (By Order)
Notice Party

[2024] IEHC 300

[H.JR.2022.1022]

THE HIGH COURT

PLANNING & ENVIRONMENT

(No. 2)

JUDGMENT of Humphreys J. delivered on Monday the 20th day of May, 2024

1

. European law requires that assessment of effects of a project should be as complete as possible for environmental impact assessment and habitats purposes. Where an error occurs in an appropriate assessment, but the opposing parties bring forward uncontradicted expert evidence to the effect that the error made no difference to the conclusion, should a development consent be quashed for such a harmless error? That is the primary albeit not sole question in the present challenge.

Judgment history
2

. In Carrownagowan Concern Group & Ors v. An Bord Pleanála & Ors (No. 1) [2023] IEHC 579, [2023] 10 JIC 2704 I made an order striking out part of the applicant's case. We now come to the substantive hearing of the balance of the proceedings.

Geographical context
3

. The development at issue is for a windfarm and associated works in the townlands of Ballydonaghan, Caherhurley, Coumnagun, Carrownagowan, lnchalughoge, Killokennedy, Kilbane, Coolready and Drummod, County Clare. The area is located north west of Killaloe, near the village of Bodyke (for more on that village see Minogue v. Clare County Council [2021] IECA 98, [2021] 3 JIC 2902).

4

. As stated in the AA screening document, the area of the proposed Wind Farm is located within forested lands on the northern slopes of Slieve Bernagh mountain, approximately 4 km northeast of the village of Broadford, 7 km north-west of Killaloe and 2.5 km south of the village of Bodyke, at its closest point. Lough Derg lies approximately 4 km to the east of the proposed development area.

5

. The approximate location of the Carrownagowan area is in or near: https://www.google.com/maps/place/Carrownagowan,+Co.+Clare/@52.8364435,-8.5734419,4387m/data=!3m2!1e3!4b1!4m6!3m5!1s0x485b6230f6ab51d9:0xd6bb5494bd7c7fe9!8m2!3d52.8368989!4d-8.5595302!16s%2Fg% 2F119tmf4qs!5m1!1e4?entry=ttu.

6

. The development is proposed to take place effectively within the Slieve Bernagh area. Doon Lough is to the west of the site, and the site drains to Doon Lough via the Owenogarney (Ratty) River within the regional Shannon Estuary North catchment. Lough O'Grady is to the north and Slieve Aughty to the further north across the Co. Galway border. An unnamed stream from the site leads to the Annaghmullahaun River which connects the site to Lough O'Grady. Lough O'Grady is in turn connected to Lough Derg to the east, with the Clare/ Tipperary border running through it along a roughly north-south axis.

7

. By way of context, the birds directive 79/409 provides for relevant areas to be classified as Special Protection Areas (SPAs). The habitats directive 92/43 requires relevant habitats to be classified as Special Areas of Conservation (SACs). SPAs and SACs collectively are known as Natura 2000 sites or simply as European sites.

8

. While domestically protected areas rather than European sites, natural heritage areas (NHAs) are designated pursuant to s. 18 of the Wildlife (Amendment) Act 2010 for the protection of species or habitats.

9

. Generally, candidate SPAs (cSPAs) or SACs (cSACs) are treated as European sites. Proposed NHAs (pNHAs) are also generally treated as NHAs – but there are a lot of these. The NPWS helpfully states in public domain material ( https://www.npws.ie/protected-sites/nha):

“In addition, there are 630 proposed NHAs (pNHAs), which were published on a non-statutory basis in 1995, but have not since been statutorily proposed or designated. These sites are of significance for wildlife and habitats. Some of the pNHAs are tiny, such as a roosting place for rare bats. Others are large — a woodland or a lake, for example. The pNHAs cover approximately 65,000ha and designation will proceed on a phased basis over the coming years.”

10

. One might have thought that 29 years would be long enough for these designations to take place but things move slowly apparently. Whether that has legal consequences isn't an issue in the present case.

11

. The AA screening report (pp. 13–15) identifies 14 European sites for screening purposes within 15 km, but only a few of these are relied on by the applicants in their fourth amended statement of grounds.

12

. The applicant's pleadings refer specifically to the following:

“Slieve Bernagh SAC: an SAC located to the north and south of the Proposed Development, designated as such by the European Union Habitats (Slieve Bernagh Bog Special Area of Conservation 002312) Regulations 2022, S.I. No. 385 of 2022”

“Slieve Aughty SPA: an SPA to the north of the Site designated as such by the European Communities (Conservation of Wild Birds (Slieve Aughty Mountains Special Protection Area 004168)) Regulations 2012, S.I. No. 83 of 2012.”

13

. The formal name for the foregoing ins the Slieve Bernagh Bog SAC and its features are as follows ( https://www.npws.ie/protected-sites/sac/002312):

“Slieve Bernagh Bog SAC

Site Details Site code 002312

Designation Special Area of Conservation (SAC)

County Clare

Coordinates Latitude: 52.8393

Longitude: -8.55176

Qualifying Interests

Northern Atlantic wet heaths with Erica tetralix [4010]

European dry heaths [4030]

Blanket bogs (* if active bog) [7130]”

14

. The formal name for the second mentioned site is the Slieve Aughty Mountains SPA and its features are as follows ( https://www.npws.ie/protected-sites/spa/004168):

“Slieve Aughty Mountains SPA

Site Details Site code 004168

Designation Special Protection Area (SPA)

Counties Clare

Galway

Coordinates Latitude: 53.0203

Longitude: -8.60545

Qualifying Interests

Hen Harrier (Circus cyaneus) [A082]

Merlin (Falco columbarius) [A098]”

15

. The pleadings also refer to the Lough Derg (Shannon) SPA whose features are as follows ( https://www.npws.ie/protected-sites/spa/004058):

“Lough Derg (Shannon) SPA

Site Details Site code 004058

Designation Special Protection Area (SPA)

Counties Clare

Galway

Tipperary

Coordinates Latitude: 52.9609

Longitude: -8.32454

Qualifying Interests

Cormorant (Phalacrocorax carbo) [A017]

Tufted Duck (Aythya fuligula) [A061]

Goldeneye (Bucephala clangula) [A067]

Common Tern (Sterna hirundo) [A193]

Wetland and Waterbirds [A999]”

16

. In terms of NHAs the pleadings refer to the following:

“Doon Lough NHA: a NHA to the west of the site, designated as such by the Natural Heritage Area (Doon Lough NHA 000337) Order 2005, S.I. No. 571 of 2005

“Lough O'Grady pNHA: a proposed NHA to the north east of the Site, given reference number 001019 by the NPWS.”

17

. The former has the following features ( https://www.npws.ie/protected-sites/nha/000337):

“Doon Lough NHA

Site Details Site code 000337

Designation Natural Heritage Area (NHA)

County Clare

Coordinates Latitude: 52.8177

Longitude: -8.66683

Qualifying Interests

Peatlands [4]”

Facts
18

. On 30th November 2020, Coillte lodged an application for permission (File Reference ABP-308799–20) to construct the development.

19

. The application included a Natura Impact Statement for the purposes of the habitats directive, and an EIA report for the purpose of the EIA directive 2011/92/EU.

20

. Whilst Coillte was the applicant for planning permission, all development rights in respect of Carrownagowan Wind Farm were transferred from Coillte to FEC, although the development lands have not yet transferred. FEC's onshore wind development rights in respect of the relevant Coillte lands are held pursuant to an exclusive option for lease, which option allows for entry into a long-term lease prior to commencement of the construction of Carrownagowan Wind Farm.

21

. On 27th November 2020, the developer published notice of the making of the application — available for public inspection from 7th December 2020 for a period of 7 weeks.

22

. The second applicant made a submission on 12th January 2021 and the first named applicant made a submission received on 3rd February 2021.

23

. The Development Applications Unit (DAU) of the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media also made a submission.

24

. On 3rd February 2021, the deadline for submissions expired.

25

. In early 2021, on foot of the DAU submission, the board requested further information from the developer.

26

. On 8th July 2021, the developer submitted further information.

27

. The developer submitted a second tranche of further information on 23rd December 2021.

28

. This further information was advertised, and notified to those who had made submissions in January 2022, and the second and third applicants made submissions on 14th and 16th February 2022 respectively.

29

. The third named applicant Nicola Henley made a submission in which she reiterated the points she had made in a first, rejected, submission.

30

. The inspector prepared a report dated 31st August 2022.

31

. The board adopted a decision on 29th September 2022 granting permission. The board order agreed with the inspector that at screening there was the possibility of significant effects on Slieve Bernagh Bog SAC (002312) and Slieve Aughty Mountains SPA (004168), and that on appropriate assessment such effects could be ruled out. The inspector's conclusion as to the effects being acceptable following EIA was also agreed with.

Procedural history
32

. The proceedings challenging the decision and including a variety of other reliefs were...

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