Carrownagowan Concern Group and Others v an Bord Pleanála and Others

JurisdictionIreland
JudgeHumphreys J.
Judgment Date27 October 2023
Neutral Citation[2023] IEHC 579
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

[2023] IEHC 579

[H.JR.2022.1022]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Humphreys J. delivered on Friday the 27th day of October, 2023

1

. The applicants are seeking interlocutory disclosure of licences and similar documents relating to forestry consents affecting specified lands going back to what looks at first sight like the arbitrary date of 1st June, 1970, a period of 53 years. Perhaps this was unconsciously inspired by the Jarndyce v. Jarndyce threshold of 54 years: see Lehane v. Wymes [2021] IEHC 427, [2021] 7 JIC 0206, para. 1. To untangle the applicants' perspective we will need a whistlestop tour of the evolution of European planning assessments.

2

. EU law began to significantly impact on Irish planning procedures from the 1980s onwards. The deadline for implementing the birds directive 79/407/EEC fell on 7th April, 1981, and for the EIA directive 85/337/EEC on 3rd July, 1988.

3

. The applicants seek certiorari of decisions going back to 1st June, 1988 relating to specified forestry activities, although it is not altogether clear why that particular date was chosen either.

4

. The deadline for implementation of the habitats directive 92/43/EEC fell on 10th June, 1994.

5

. From the establishment of the forestry consent system in 2001, up to 2006, where advertisement of applications was necessary this was done in a local newspaper.

6

. Since December, 2006, notices of application for afforestation licences and grants have been available online. Applications for forest roads have been online since 2011.

7

. On 16th May, 2017, transposition of directive 2014/52 amending the 2011/92 EIA directive fell due, and EIA reports since then are available on the Government's central portal.

8

. Since June, 2017, notices of application for felling licences have been available online.

9

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

10

. 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.

11

. The EIAR includes the following:

“7.3.4, The type and nature of the upland habitats, in the site and wider locality, has been significantly modified by plantation forestry and this accounts for the occurrence of (specialist) species including redpoll, crossbill and siskin. Hen harrier and merlin may benefit from temporal availability of breeding sites and foraging habitat in conifer plantation, but for these and for other species extensive open moorland is essential habitat.

While conifer plantation may have created new bird habitats for species such as hen harrier, there are more serious implications in terms of the extent of upland moorland lost to natural upland species using these habitat types, such as red grouse, and hen harrier. Moreover, forest habitat and to some extent agriculture may encourage predator numbers to an unbalanced level, particularly fox, pine marten, hooded crow and raven, affecting vulnerable ground-residing species such as hen harrier and red grouse (Thompson et al. 1988).”

12

. The citation is to Thompson, Des & Stroud, David & Pienkowski, Mike, “Afforestation and upland birds: consequences for population ecology”, in Ecological change in the uplands (1988), Nature Conservancy Council/British Ecological Society Symposium, 237–259. I note in passing that this paper is available online at:

https://www.researchgate.net/publication/292972362_Afforestation_and_upland_birds_consequences_for_population_ecology_In_Ecological_change_in_the_uplands. It concludes that at least 34 out of 71 upland species of British birds are at risk from afforestation.

13

. The NIS concludes (p. 57) that the site is unlikely to be of inherent value for the SPA population of Hen Harrier. It notes that Hen Harrier are associated with ground nesting and heather/ moorland areas, but in recent decades have been associated with young pre-thicket conifers on a first or particularly second rotation (citing Mark W. Wilson, Sandra Irwin, David W. Norriss, Stephen F. Newton, Kevin Collins, Thomas C. Kelly & John O'Halloran “The importance of pre-thicket conifer plantations for nesting Hen Harriers Circus cyaneus in Ireland”, Ibis (2009), 151, 332–343).

14

. I can pause to note in passing (without drawing any conclusions from it) that the full paper cited is available online at:

https://www.ucc.ie/en/media/research/planforbio/pdfs/Wilsonetal2009.pdf, and while in no way definitive does include the comment at p. 342 that:

“In Ireland, however, pre-thicket second rotation plantation forest is not only the most commonly used nesting habitat, but is positively correlated with changes in breeding Hen Harrier numbers over time. Coupled with the lack of evidence for any negative impact of post-closure forest cover on Hen Harrier distribution within these areas, this gives some reason to be optimistic about the long-term effects of afforestation on this species, at least in Ireland.”

15

. Forestry was identified as a high pressure impact on Mount Aughty Mountains SPA (p. 66) An examination of other wind farms including Derrybrien indicated that Hen Harrier were not significantly adversely effected. In this regard the NIS cites “Madden & Porter (2007)”, but there is no Madden & Porter study referenced in the bibliography. This paper is however cited in the bibliography subsequently contained in the response to the request for further information (Item 1 p. 28). The paper is Madden, B. & Porter, B., “Do wind turbines displace Hen Harriers Circus cyaneus from foraging habitat? Preliminary results of a case study at the Derrybrien wind farm, County Galway”, Irish Birds (2007) 8: 231–236.

16

. 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.

17

. The second applicant made a submission on 12th January, 2021 and the first named applicant made a submission received on 3rd February, 2021. While Hen Harrier are mentioned briefly, it is hard to see much emphasis in that on either the remedial obligation generally or what specific measures are required to assist the Hen Harrier in dealing with effects, if any, of afforestation.

18

. The Development Applications Unit (DAU) of the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media made a submission raising issues about impacts on Hen Harrier. The fifth point in that document states:

“The cumulative impact assessment needs to consider all pressures operating on the surrounding environment and protected sites. Most specifically, analysis of proposed forestry planting and felling licence applications in the area must be assessed.”

19

. On foot of that submission the board requested further information from the developer.

20

. The developer submitted such further information on 23rd December, 2021. This included a Hen Harrier management plan which involved the improvement of nearby specified areas (Habitat improvement lands A-G) in order to provide suitable lands for hen harrier foraging/ roosting. Site A was initially afforested around 1992 (p. 10 of hen harrier management plan). The response noted that nesting at forest edges was associated with an increased risk of predation (p. 7 citing NPWS 2015) so the improved lands would mitigate that problem. NPWS 2015 is cited in the response to Item 1 bibliography as being NPWS, 2015, Hen Harrier Conservation and the Forestry Sector in Ireland, 31/03/2015, Version 3.2.

21

. The developer's response to the need to assess forestry licence applications was that “[b]aseline conditions at the site will not be significantly altered”. It stated that Coillte's forestry management plan for the area was reviewed, and private forest activity was estimated based on aerial surveys. It provided figures which suggested that parcels likely to be felled and re-planted in 2040–45 would be 626 ha, and in 2050–58 would be 124ha. It concluded that foraging and nesting habitat would remain relatively stable for the period of the project (2025–55). The meaning of all this wasn't immediately self-evident in that it wasn't obvious how this conclusion follows from a table that indicates significant variation and that does not address 2025–2040.

22

. That section concluded (p. 10) with the comment that forestry licences were subject where appropriate to EIA and AA. That is more a statement of legal theory rather than a reassurance as to implementation in practice and is probably cold comfort to these applicants.

23

. This further information was advertised, and the second and third applicants made submissions on 14th and 16th February, 2022 respectively. Again...

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