Connelly v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Clarke J.,MacMenamin J.,Laffoy J.
• Judgment Date: 14 June 2017
• Neutral Citation: [2017] IESCDET 57
• Court: Supreme Court
• Date: 14 June 2017

[2017] IESCDET 57

THE SUPREME COURT

DETERMINATION

Clarke J.

MacMenamin J.

Laffoy J.

BETWEEN

KATHLEEN CONNELLY

APPLICANT/RESPONDENT

AND

AN BORD PLEANÁLA

RESPONDENT/APPLICANT

AND

CLARE COUNTY COUNCIL

MCMAHON FINN WIND ACQUISITIONS LIMITED

NOTICE PARTIES

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court grants an order allowing an appeal to this Court under Article 34.5.4 of the Constitution, from the judgment of the High Court delivered on the 8th November, 2016.

REASONS GIVEN:

Background

1 This determination concerns a decision of the High Court delivered on the 8th November, 2016 by Barrett J., wherein he quashed a decision made by the applicant herein (‘the Board’), granting permission for a wind-farm development to the second named notice party. The court held that the Board, having carried out an appropriate assessment (‘AA’) or environmental impact assessment (‘EIA’) in relation to the project, and had not provided sufficient reasons for granting permission for the project.

2 As is clear from the terms of the Constitution, and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary that for this Court to grant leave, it be established that the decision sought to be appealed against, either involves a matter of general public importance, or that it is otherwise in the interests of justice necessary that there be an appeal to this Court. This is an application for a leapfrog appeal, in circumstances where an appeal to the Court of Appeal was not certified in the High Court.

3 The Court considers it desirable to point out that a determination of this Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, the issue, or issues, in respect of which leave has been granted will, in due course, be disposed of in a substantive decision of the Court.

The High Court Proceedings

4 Save where otherwise appears, all statutory references hereafter are to the Planning & Development Act, 2000, (‘P.D.A. 2000’) as amended, unless otherwise stated.

5 The applicant, Kathleen Connelly, is a householder in County Clare. She was opposed to the development of a wind-farm close to her home. The development was to consist of six turbines and associated works. Clare County Council refused permission for this development on the 12th July, 2011.

6 The Council's decision was appealed to An Bord Pleanala by the second notice party on the 8th August, 2011. During the appeal process the Board appointed an inspector to prepare a report. This report issued on the 30th November, 2011. It was negative in effect. On 25th January, 2011 a meeting of the Board was held at which the appeal was considered. The Board had concerns regarding habitat protection, the risk of water pollution, as well as issues concerning the assessment of noise and environmental effect. The Board, therefore, required the developer (who is the second notice party) to provide specific information and revisions to address these questions. A statutory notice to this effect, issued under s.132 PDA 2000, was served on the developer, and those who had made submissions or observations to the Board. These concerns reflected the observations in the Inspector's report.

7 On 9th August, 2013, the developer submitted its response to the s.132 notice. This included a requested ‘Natura Impact Statement’ dealing specifically with the matters which the Board had asked to be considered. The Board considered that this additional information was sufficient. The Board issued its decision on 6th June, 2014. It recorded that it was satisfied that the information, which was by then before it, was adequate to undertake an ‘A.A.’, and an ‘E.I.A.’, in respect of the proposed development. The Board concluded that an ‘A.A.’ had been carried out on potential impacts of the proposed developments on certain conservation and other sites, and subject to the implementation of identified mitigation measures, it was satisfied that the proposed development by itself, or in combination with other plans or projects, would not adversely affect the integrity of same. The Board noted the developer had completed an E.I.S. The Board noted and generally adopted the Inspector's assessment of environmental impacts, with the exception of the matters set out in the decision, and concluded that the proposed development would not have unacceptable effects on the environment. The Board decision dealt with issues such as residential amenity, visual impact, perceived risks to the Hen Harrier, water pollution and ground instability.

The High Court Judgment

8 The High Court quashed the Board's decision, holding, first, that, in requiring the submission of an Natura Impact Study, in the s.132 Notice, the Board had failed to provide reasons for its determination that an ‘A.A.’ was required, pursuant to s.177 U(6) P.D.A., as amended; second, that the Board had failed to comply with s.177 V(1) P.D.A. 2000, as amended, in the manner in which it carried out and recorded its AA; that the Board's decision amounted to nothing more than an assertion that it had considered all the material put before it; and that it was not entitled to ‘generically incorporate’ into its Decisions separate materials such as the Inspector's report; that the law required that complete, precise and definitive findings which, in turn, required that a non-involved person reading the decision could turn readily to the particular observations, reasoning or conclusions in a particular report or text to which reference was made. The High Court concluded, therefore, that the Board decision was deficient in terms of its reasons, in the absence of such linkage.

9 The High Court also considered that similar considerations applied to the EIA, holding that the Board's decision failed to comply with the requirements of...