Concerned Residents of Treascon and Clondoolusk v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 16 December 2022
• Neutral Citation: [2022] IEHC 700
• Court: High Court
• Docket Number: [2021 No. 1009 JR]

Between:

Concerned Residents of Treascon and Clondoolusk

Applicant

and

An Bord Pleanála, Ireland and the Attorney General

Respondents

and

Elgin Energy Services Limited

Notice Party

[2022] IEHC 700

[2021 No. 1009 JR]

[2022 No. 24 COM]

THE HIGH COURT

COMMERCIAL

Judicial review – Planning permission – EIA Directive – Applicant seeking an order of certiorari quashing a decision of the first respondent to grant planning permission to the notice party – Whether the first respondent breached the EIA Directive

Facts: The applicant, Concerned Residents of Treascon and Clondoolusk, applied to the High Court seeking the following reliefs: (i) an order of certiorari by way of application for judicial review quashing a decision of the first respondent, An Bord Pleanála (the Board), of on or about 4 October 2021, to grant planning permission to the notice party, Elgin Energy Services Ltd (the developer), to build and operate a solar powered electricity generating power station on a c.90 ha site consisting of arrays of solar panels, 40 no. inverter/transformer stations, underground cable trenches and cables connecting the solar arrays to the inverter stations and subsequently to the proposed on-site transmission infrastructure, internal roads and ancillary works on agricultural land within the townlands of Treascon and Clondoolusk, Portarlington, Co. Offaly; (ii) such declaration(s) of the legal rights and/or legal position of the applicant and/or respondents and/or persons similarly situated as the Court considers appropriate; (iii) a declaration that the second and third respondents, Ireland and the Attorney General, failed to properly transpose Annex II, paragraph 1(a) of Directive 2011/92/EU as amended by Directive 2014/52/EU (the EIA Directive) into Irish law governing development consents, being the class of project “Projects for the restructuring of rural land holdings”; (iv) a declaration that Art. 109(2) of the Planning and Development Regulations 2001, as amended, is incompatible with the State’s obligations under Articles 4(2) to 4(6) of Directive 2011/92/EU as amended by Directive 2014/52/EU; (v) an order providing for the costs of the application and an order pursuant to s. 50B of the Planning and Development Act 2000, as amended and s. 3 of the Environmental (Miscellaneous Provisions) Act 2011, as amended with respect of the costs of the application; (vi) a stay preventing the operation of the impugned decision until after the matters that were the subject of the proceedings had been decided by the courts; and (vii) further and other orders including interim orders. There were essentially two domestic law issues argued, independent of any EU dimension: (i) failure to seek adequate drawings; and (ii) failure to have regard to relevant considerations. There were essentially four EIA issues: (i) breach of the EIA Directive by the Board; (ii) breach of the EIA Directive regarding information on a central portal; (iii) non transposition; and (iv) invalidity of art. 109(2) of the Local Government Regulations 2001. The other EU law points essentially raised issues under four separate directives: (i) breach of Council Directive 2000/60/EC (the Water Framework Directive); (ii) breach of Directive 2001/42/EC (the SEA Directive); (iii) breach of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive) by reason of erroneous screening out of qualifying interests; (iv) breach of the Habitats Directive by reason of an error or lacuna in the appropriate assessment (AA); and (v) breach of Directive 79/409/EEC, amended and codified as Directive 2009/147/EC (the Birds Directive).

Held by Humphreys J that the applicant had failed to make out any of their core grounds. Humphreys J dismissed the proceedings.

Humphreys J ordered that the matter be listed for mention for any consequential orders on a date to be notified by the List Registrar.

Proceedings dismissed.

JUDGMENT of Humphreys J. delivered on the 16 ^th day of December, 2022.

1 . On 11 ^th March, 2021, the developer in this case submitted a planning application for a solar farm and other works to Offaly County Council (reference 21123). The board describes the project as follows: “[t]he proposed development consists of an up to 60 megawatt (MW) solar farm comprising photovoltaic panels on ground-mounted frames, laid out in arrays on an area of approximately 86.7 hectares and interconnected by underground cables. It also comprised 40 single storey invertor stations, 4 steel storage containers, palisade perimeter fencing, double palisade security gates, a permeable gravel access track, 36 pole-mounted on-site CCTV cameras (c. 3m in height), 2 temporary construction compounds/material storage areas, 2 temporary construction stage Moby-Dick type wheelwash systems (with overhead settlement tank), and all associated ancillary development services and works.” The “Moby Dick” wheel wash system is of course in homage to Herman Melville's Moby-Dick or, The Whale (London, Richard Bentley, 1851).

2 . The application was accompanied by, among other things, a Natura Impact Statement (NIS) and a Planning and Environmental Considerations Report (PECR). The applicant residents' group and their deponent, Mr. Ruairí Whelan made submissions raising various concerns about the project. The council granted permission on 5 ^th May, 2021 subject to fifteen conditions.

3 . On 31 ^st May, 2021, the applicant appealed to the board. The appeal document had a series of appendices, appendix 5 being a document entitled “Peer Review of Ecological Information submitted in support of a Planning Application for Proposed Development of Treascon Solar Farm, Portarlington, County Offaly” by Forest Environmental Research and Services Limited.

4 . On 20 ^th July, 2021, the board refused an oral hearing.

5 . The board's inspector reported on 31 ^st August, 2021, recommending grant of permission subject to conditions. On 4 ^th October, 2021, the board made a direction reflecting an intention to grant permission generally in accordance with the inspector's recommendation. This was followed on the same date by an order granting permission, subject to fourteen conditions.

Procedural history

6 . The decision of 4 ^th October, 2021 is challenged in the applicant's statement of grounds filed on 29 ^th November, 2021. On 6 ^th December, 2021, Meenan J. made an order directing leave on notice. On 2 ^nd February, 2022, an order was made granting leave to seek judicial review. The matter was entered into the Commercial List on 7 ^th March, 2022 and transferred thereafter to the Commercial Planning and Strategic Infrastructure List. Interim directions were made in the latter List on 14 ^th March, 2022, amended on 28 ^th March, 2022 and 16 ^th May, 2022. On 11 ^th July, 2022, a hearing date was fixed commencing on 1 ^st November, 2022.

7 . In the meantime, statements of opposition were filed by the board, the State and the developer on 11 ^th May, 2022, 19 ^th May, 2022 and 30 ^th May, 2022. Written legal submissions were delivered by all parties.

Reliefs

8 . As sought in the amended statement of grounds, the reliefs claimed by the applicant are as follows:

• (i) An Order of Certiorari by way of application for judicial review quashing a decision of An Bord Pleanála (‘the Board’) of on or about 4 October 2021, to grant planning permission to the Notice Party (‘the developer’) to build and operate a solar powered electricity generating power station on a c.90 ha site consisting of arrays of solar panels, 40 no. inverter/transformer stations, underground cable trenches and cables connecting the solar arrays to the inverter stations and subsequently to the proposed on-site transmission infrastructure, internal roads and ancillary works on agricultural land within the townlands of Treascon and Clondoolusk, Portarlington, Co. Offaly.

• (ii) Such Declaration(s) of the legal rights and/or legal position of the applicant and/or respondents and/or persons similarly situated as the Court considers appropriate.

• (iii) A Declaration that the Second and Third Respondents failed to properly transpose Annex II, paragraph 1(a) of Directive 2011/92/EU as amended by Directive 2014/52/EU (‘the EIA Directive’) into Irish law governing development consents, being the class of project “ Projects for the restructuring of rural land holdings”.

• (iv) A Declaration that Art. 109(2) of the Planning and Development Regulations, 2001, as amended, is incompatible with the State's obligations under Articles 4(2) to 4(6) of Directive 2011/92/EU as amended by Directive 2014/52/EU.

• (v) An Order providing for the costs of the application and an Order pursuant to Section 50B of the Planning and Development Act, 2000, as amended and Section 3 of the Environmental (Miscellaneous Provisions) Act 2011, as amended with respect of the costs of this application.

• (vi) A stay preventing the operation of the impugned decision until after the matters that are the subject of these proceedings have been decided by the courts.

• (vii) Further and other orders including interim orders.

Materials before the court

9 . Materials placed before the court by being uploaded to the ShareFile platform for this case included submissions, books of authorities and certain separate authorities, books of exhibits, books of pleadings, and mapping material, running to a combined record-breaking total of 7,608 pages (exceeding the recent local record in Brownfield v. Wicklow County Council (No. 7) [2022] IEHC 662).

Preliminary issues

10 . A number of preliminary issues were raised.

11 . As regards pleading objections, these are best addressed where they would make a difference under the relevant heading specifically discussed below.

12 . Separately, the entitlement of the applicant to make the arguments pleaded was also challenged in...