Eamon (Ted) Kelly v an Bord Pleanála and Others

JurisdictionIreland
JudgeMs. Justice Finlay Geoghegan
Judgment Date25 July 2014
Neutral Citation[2014] IEHC 400
CourtHigh Court
Date25 July 2014
Kelly v Bord Pleanala & Ors

BETWEEN

EAMON (TED) KELLY
APPLICANT

AND

AN BORD PLEANÁLA
RESPONDENT

AND

ROSCOMMON COUNTY COUNCIL, GALETECH ENERGY DEVELOPMENTS LIMITED, SKY VALLEY CONCERNED RESIDENTS GROUP, WIND TURBINE ACTION GROUP SOUTH ROSCOMMON, THE DEPARTMENT OF ARTS, HERITAGE AND THE GAELTACHT, SKY VALLEY WIND COMPANY, THE HERITAGE COUNCIL AND THE COMMISSION FOR ENERGY REGULATION, PAUL DONOHUE, JAMES FRANCIS FALLON, THOMAS BURKE, MARIA DONNELLY, TOM AND FIONA FARRELL, LIAM KILDEA SKY VALLEY CONCERNED RESIDENTS GROUP, THE HERITAGE COUNCIL AND THE COMMISSION FOR ENERGY REGULATION
NOTICE PARTIES

[2014] IEHC 400

[No. 802 J.R./2013]

THE HIGH COURT

Judicial review - Planning law - Order of certiorari - Planning permission - Wind turbine development - Special Areas of Conservation - Habitats Directive - Article 6(3) - Sub-section 177V(1), (3) and (4) - Appropriate assessment - Whether proposed development having a significant effect on the integrity of a European site - Need to remove all reasonable scientific doubt - Obligation to give reasons for decision

Facts Galetech Energy Developments Ltd applied for planning permission for the development of several wind turbines in County Roscommon. The applicant is resident in Dysart, County Roscommon and is the Chairman of a group of local residents called the Wind Turbine Action Group South Roscommon. He is supported by one notice party, namely, the Department of Arts, Heritage and the Gaeltact and by order of certiorari sought to quash the decisions granting planning permission to the respondent. The two phases of the development are in the same vicinity and both are categorised as special areas of conservation. The Board appointed two inspectors and both recommended the refusal of planning permission. The Board held a meeting to consider the appeals concerned and decided by a majority of 4:1 that planning permission be granted.

The applicant delivered a detailed statement of grounds: (1) The Board failed to carry out a proper environmental impact assessment of the proposed development as is required under Irish and European law; (2) The Board failed to carry out a proper appropriate assessment of the proposed development as is required under Irish and European law; (3) The Inspectors in each appeal recommended a refusal of permission for the proposed development, thus the Board erred in failing to have any proper regard to these recommendations and in particular the scientific doubt expressed in these recommendations; (4) The Board failed to properly or at all record its conclusions or to give any proper statement of its reasons or considerations contrary to national and European law; (5) The Board erred in applying an incorrect test in its purported appropriate assessment; (6) The Board”s decision was irrational. As their primary ground the applicant and the Department argue that the decisions of the Board to grant planning permission were made in breach of the requirements of Article 6(3) of the Habitats Directive as transposed into national law by Part XAB of the Planning and Development Act 2000 (PDA).

Held When considering whether or not to grant planning permission the Board must meet the requirements set out in s. 37 of the PDA. In his concluding statements the judge ruled that the Board had failed to carry out an appropriate assessment. The determination made by the Board that the proposed development would not adversely affect the integrity of any European site in view of the conservation objectives could not be considered lawful. In the absence of such a lawful determination, the Board did not have jurisdiction to grant planning permission for the proposed development pursuant to s. 177V (3) of the PDA. Furthermore, the Board failed to give reasons for its determination. In relation to Phase 2, the judge stated the findings made by the Inspector in relation to the matters identified as potentially affecting the integrity of the Natura 2000 sites concerned, were such that the appropriate assessment in the Inspector”s report could not support a determination that the proposed development would not adversely affect the European sites concerned. The Board simply disagreed with the Inspector”s conclusions regarding the adverse effects of the proposed development. No evidence of any assessment conducted by the Board comprising the complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed development was put forward. Consequently, the Board had not lawfully conducted an appropriate assessment in accordance with Article 6(3) of the Habitat Directive capable of supporting its determination nor did it give reasons for its decision.

-Order of certiorari granted in relation to the Phase 1 and Phase 2 decisions.

EEC DIR 92/43 ART 6(3)

PLANNING & DEVELOPMENT ACT 2000 PART XAB

EEC DIR 2011/92

PLANNING & DEVELOPMENT ACT 2000 S37

PLANNING & DEVELOPMENT ACT 2000 S146(1)

PLANNING & DEVELOPMENT ACT 2000 S146(2)

PLANNING & DEVELOPMENT ACT 2000 S34(10)

PLANNING & DEVELOPMENT ACT 2000 S171A(1)

PLANNING & DEVELOPMENT ACT 2000 S172(1H)

PLANNING & DEVELOPMENT ACT 2000 S172(1J)

PLANNING & DEVELOPMENT ACT 2000 S172(1J)(B)

PLANNING & DEVELOPMENT ACT 2000 S171A

PLANNING & DEVELOPMENT ACT 2000 S177U

PLANNING & DEVELOPMENT ACT 2000 S177V

SWEETMAN v BORD PLEANALA (CASE C-258/11)

PLANNING & DEVELOPMENT ACT 2000 S177U(6)(C)

PLANNING & DEVELOPMENT ACT 2000 S177U(1)

PLANNING & DEVELOPMENT ACT 2000 S177U(2)

PLANNING & DEVELOPMENT ACT 2000 S177U(3)

PLANNING 7 DEVELOPMENT ACT 2000 S177U(4)

PLANNING & DEVELOPMENT ACT 2000 S177U(5)

PLANNING & DEVELOPMENT ACT 2000 S177U(6)

PLANNING & DEVELOPMENT ACT 2000 S177V(1)

PLANNING & DEVELOPMENT ACT 2000 S177V(5)

EEC DIR 92/43 ART 6(4)

LANDELIJKE VERENIGING TOT BEHOUD VAN DE WADDENZEE v STAATSSECRETARIS VAN LANDBOUV 2005 2 CMLR 31 2005 ENV LR 14 2004 ECR I-7405 (CASE C-127/02)

COMMISSION v SPAIN (CASE C-404/09) 2011 ECR I-11853

PLANNING & DEVELOPMENT ACT 2000 S177V(5)

R (ON THE APPLICATION OF MELLOR) v SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVT 2010 ENV LR 2 2009 ECR I-3799 (CASE C-75/08)

CHRISTIAN v DUBLIN CITY COUNCIL 2012 2 IR 506 2012/6/1547 2012 IEHC 163

RAWSON v MIN FOR DEFENCE UNREP SUPREME 1.5.2012 2012/40/11874 2012 IESC 26

EMI RECORDS (IRL) LTD & ORS v DATA PROTECTION CMSR & EIRCOM LTD 2014 1 ILRM?Çë225 2013/18/5315 2013 IESC 34

O'NEILL v BORD PLEANALA UNREP HEDIGAN 1.5.2009 2009/45/11350 2009 IEHC 202

MULHOLLAND v BORD PLEANALA (NO.2) 2006 1 IR 453 2006 1 ILRM 287 2005/40/8371 2005 IEHC 306

PLANNING & DEVELOPMENT ACT 2000 S177V(3)

1

1. The applicant, supported by one notice party, namely, the Department of Arts, Heritage and the Gaeltacht ("the Department") in this judicial review, seeks, by way of primary relief orders of certiorari, to quash two decisions of the respondent to grant planning permission for wind turbine developments in County Roscommon. The challenged decisions are:

2

"(1) A decision made on the 9 th of September, 2013, to grant permission for a development comprising sixteen wind turbines with a hub height of 85m, rotor diameter of 100m at Croan, Gortaphuill, Mullaghardagh, Dysart, County Roscommon (Appeal Reference PL20.239759 Planning Register Ref. 10/541) ("Phase 1 Decision").

(2) A decision made on the 13 th of September, 2013, to grant planning permission for a development comprising nineteen wind turbines with a hub height of 85m, rotor diameter of 100m and overall height of 135m and 85m anemometer mass and 110kv substation a Milltown, Skeavally, Tawnagh, Tobermacloghlin, County Roscommon (Appeal ref. PL20.241069 Planning Register Ref. 11/273) ("Phase 2 Decision").

2

2. Galetech Energy Developments Ltd. ("Galetech"), a notice party, is the applicant for the planning permissions that are the subject of the Phase 1 and Phase 2 Decisions. It supports the respondent, An Bord Pleanála ("the Board") in opposing the present application.

3

3. As appears, the applications for planning permission relate to two developments of wind turbines in County Roscommon. The applicant is resident in Dysart, County Roscommon, is the Chairman of a group of local residents called the Wind Turbine Action Group South Roscommon and was an appellant before the Board in relation to each appeal.

Background
4

4. In 2010, Galetech applied for planning permission for a development comprising 16 wind turbine at Dysart, County Roscommon. In 2011, it applied for permission for the development of 19 wind turbines at Milltown, Skeavalley, County Roscommon. The two developments are in the same vicinity and are contended by the applicant to comprise two phases of the same development. They will be referred to as Phase 1 and Phase 2 in this judgment. Roscommon County Council granted permissions for the two developments and appeals were made to the Board.

5

5. The proposed developments are in the vicinity of a number of European sites, both Special Areas of Conservation (SAC) and Special Protection Areas (SPA). There are ten conservation sites within 10km of the Phase 1 site. These include three Natura 2000 sites, Loghcroan SAC, Four Road Turlough CSAC and the River Suck Callows SPA. Those sites have important numbers of wetland and water birds, including Whooper Swan, Golden Plover and Greenland White Fronted Geese, all Annexe 1 species. Within 15km of the Phase 2 site, there are 14 Natura sites including the three Natura 2000 sites already mentioned.

6

6. The Board appointed a Planning Inspector to prepare a report on the appeal in relation to Phase 1, Ms. Kelly. Ms. Kelly reported on 11 th March, 2012. She recommended refusal of planning permission.

7

7. The Board appointed Ms. MacGabhann as Inspector in relation to the Phase 2 appeal. Ms. MacGabhann reported on...

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