Connolly -v- An Bord Pleanala, [2016] IEHC 322 (2016)

Docket Number:2014 488JR
Party Name:Connolly, An Bord Pleanala
 
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THE HIGH COURT

Record No. 2014/488JR

IN THE MATTER OF SECTION 50 OF THE

PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)

BETWEEN

KATHLEEN CONNOLLY APPLICANT -AND-

AN BORD PLEANÁLA RESPONDENT -AND-

CLARE COUNTY COUNCIL, McMAHON FINN WIND ACQUISITIONS LTD

NOTICE PARTIES

JUDGMENT of Mr Justice Max Barrett delivered on 14th June, 2016.

Part 1: Introduction 1. Ms Connolly does not want a wind-farm built by her house. She comes seeking an order quashing a decision of An Bord Pleanála that would allow such a development. She maintains that this decision is unlawful and ought to be set aside.An BordPleanála maintains that it has done everything required of it by law and that its decision should stand.

Part 2: KeyFacts

  1. Planning Authority Refusal. 2. The developer’s original planning application was for a wind-farm consisting of six turbines and associated works. Clare County Council refused planning permission for this development on 12th July, 2011. There were three main threads to the County Council’s refusal. First,visual and noise impact; the Council considered that the appraisal of the proposed development in these respects was not acceptable. Second, location; Clare County Council believed an application for six turbines was not suited to the intended location and brought consequent water pollution risks. Third, an information deficit, e.g., as regards the threat that the development posed to a bird called the ‘hen harrier’, to bats, and as regards intended haulage routes.

  2. Appeal and Inspector’s Report. 3. The Council’s decision was appealed to An Bord Pleanála by the developer on 8th August, 2011. During the appeal process, An Bord Pleanála appointed an inspector to prepare a report. This report issued on 30th November, 2011. On 25th January, 2013, a meeting of An Bord Pleanála was held at which the appeal was considered. A consideration of the decision that issued from An Bord Pleanála suggests that it had concerns regarding habitat protection, the risk of water pollution, as well as issues concerning the assessment of noise and environmental effect. Accordingly, An Bord Pleanála required the developer to provide specific information and revisions. A statutory notice to this effect (issued under s.132 of the Planning and Development Act 2000, as amended (the ‘Act of 2000’)) was served on the developer. Copies of same were also served on those who had made submissions or observations to An BordPleanála. In short, An Bord Pleanála engaged with such deficiencies as the planning authority and its own planning inspector had raised and sought further information to deal with such difficulties as appeared to present.

  3. Additional Information. 4. On 9th August, 2013, the developer submitted its response to the s.132 notice. This was detailed, included a requested ‘Natura Impact Statement’, and dealt specifically with such matters as An BordPleanála had asked to be considered. AnBordPleanála ultimately accepted that this additional information was sufficient to plug such gaps as it had identified when it issued the s.132 notice.

  4. Decision of AnBordPleanála. 5. The decision of An Bord Pleanála issued on 6th June, 2014. It records, inter alia,that An Bord Pleanála: (a) is satisfied that the information before it was adequate to undertake an appropriate assessment and an environmental impact assessment in respect of the proposed development; (b) in terms of appropriate assessment, has completed an appropriate assessment in relation to the potential impacts of the proposed development on certain conservation and other sites and (subject to the implementation of identified mitigation measures)is satisfied that the proposed development, by itself, or in combination with other plans or projects, will not adversely affect the integrity of same; (c) has completed an environmental impact statement; and (d)notes and generally adopts the inspector’s assessment of environmental impacts, with the exception of the matters set out in the decision, and concludes that the proposed development will not have unacceptable effects on the environment. The Board then proceeds to deal with such issues as residential amenity, visual impact, perceived risks to the hen harrier, water pollution, and ground instability.

Part 3: Ms Connolly’s Objections 6. Ms Connolly raises four key objections to the decision of An Bord Pleanála. These are that An Bord Pleanála failed:(1) to carry out and/or record any screening assessment for appropriate assessment, contrary to national and European law, (2) to carry out and/or record any proper appropriate assessment under national and European law, (3) to carry out and/or record any proper environmental impact assessment under national/European law, and (4) to consider or have regard to its obligations under s.37(2) of the Planning and Development Act 2000. Each of Ms Connolly’s objections is considered below.

(1) Failure to carry out and/or record any screening assessment for appropriate assessment. 7. Ms Connolly’s complaint in this regard arises pursuant to s.177U of the Planning and Development Act 2000. So far as relevant to the within proceedings, this provision can perhaps be summarised as follows.Section 177U(1) requires that a screening for an appropriate assessment of, inter alia, an application for consent for a proposed development be carried out by a competent authority to assess, in light of best scientific knowledge, whether the proposed development, individually or in combination with another plan or project is likely to have a significant effect on a European site. Section 177U(2) requires that a screening for an appropriate assessment be done, inter alia, before consent for a proposed development is given. Section 177U(3) makes provision as regards the information that may be requested and the consultation that may be done when a competent authority is carrying out such a screening, and makes certain associated provision. Section 177U(4) and (5) between them make provision as to when a competent authority shall determine that an appropriate assessment of, inter alia, a proposed development, is or is not required. Section 177U(6) is worth quoting in full:

“(a) Where, in relation to a proposed development, a competent authority makes a determination that an appropriate assessment is required, the competent authority shall give notice of the determination, including reasons for the determination of the competent authority, to the following –

(i) the applicant,

(ii) if appropriate, any person who made submissions or observations in relation to the application to the competent authority, or

(iii) if appropriate, any party to an appeal or referral.

(b) Where a competent authority has determined that an appropriate assessment is required in respect of a proposed development it may direct in the notice issued under paragraph (a) that a Natura impact statement is required.

(c) Paragraph (a) shall not apply in a case where the application for consent for the proposed development was accompanied by a Natura impact statement.”

  1. Section 177U(7) makes provision as regards making a decision available to the public. Section 177U(8) defines what is meant by the term “consent for proposed development”. Section 177U(9) has no relevance to the within proceedings.

  2. An Bord Pleanála contends that the s.132 notice of 13th February, 2013, sufficed to comply with s.177U(6a) of the Act of 2000. This notice indicated that An Bord Pleanála required a Natura Impact Statement so that it could carry out a ‘Stage 2’ assessment, i.e. a full appropriate assessment. An Bord Pleanála must also have determined, in accordance with s.177U(6a)(ii) of the Act of 2000, that it was appropriate to circulate this s.132 notice to all...

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