Eco Advocacy CLG v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 15 January 2025
• Neutral Citation: [2025] IEHC 15
• Court: High Court
• Docket Number: [H.JR.2024.0000290]

Between

Eco Advocacy CLG

Applicant

and

An Bord Pleanála

Respondent

and

Statkraft Ireland Limited

Notice Party

[2025] IEHC 15

[H.JR.2024.0000290]

THE HIGH COURT

PLANNING & ENVIRONMENT

Planning and environment – Order of certiorari – Declaratory relief – Applicant seeking to quash the respondent’s decision to grant planning permission to the notice party – Whether the issue could properly be marked with declaratory relief rather than certiorari

Facts: The applicant, Eco Advocacy CLG, applied to the High Court seeking: an order of certiorari by way of application for judicial review quashing a decision made by the respondent, An Bord Pleanála (the Board), to grant planning permission to the notice party, Statkraft Ireland Ltd (the Developer), on appeal for a wind farm development; a declaration that the decision contravenes s. 146(7) of the Planning and Development Act 2000, and public participation requirements of EU law, because the Board failed to make available for inspection on its website the amended Environmental Impact Assessment Report; an order providing for the costs of the application and an order pursuant to s. 50B of the 2000 Act and s. 3 of the Environmental (Miscellaneous Provisions) Act 2011, with respect to the costs of the application; and a stay preventing the operation of the impugned decision until after the matters that are the subject of the proceedings have been decided by the courts.

Held by Humphreys J that (i) the complaint about inadequate time for the oral hearing was unfounded; (ii) the complaint about non-publication of an amended EIAR/NIS/AA screening was unfounded on the evidence; (iii) the complaint that matter was not properly made available on the board’s website because it was given incomprehensible file names had been made out - however this did not either logically or on the facts affect the validity of a decision already made; (iv) the CJEU had already clarified that the Board is not required to dispel scientific doubt as to impacts on a European site by way of a point-by-point reply to submissions - rather it is required to give sufficient reasons to dispel all reasonable doubt, hence there was no infirmity in the Board not replying expressly to the National Parks and Wildlife Service second submission; (v) if he was wrong about the foregoing, he would exercise discretion to refuse relief having regard to the failure to show evidentially that additional assessment would have made any difference, the disproportionate impact on the developer, and the applicant’s failure to raise the relevant issues in its submissions to the decision-maker; and if he was wrong that discretion was inadequately pleaded, he would exercise such discretion of his own motion to dismiss the proceedings for the reasons set out above.

Humphreys J ordered that: the proceedings be dismissed insofar as they sought relief other than declaratory relief and costs; there be a declaration that the respondent was in breach of s. 146(7)(a) of the 2000 Act between on or about 6th January 2024 and 23rd August 2024 by making available documents with incomprehensible file names thereby failing to make such documents available in an effective and reasonable manner; there be an order for costs to the applicant against the respondent in respect of the proceedings, limited to the costs that would have been incurred had the applicant confined its proceedings to the issue on which it prevailed, and that any issue as to the extent of the costs that would have arisen in that circumstance be determined, in default of agreement, in the legal costs adjudication process; there be no order as to costs in favour of or against any other party.

Relief granted in part.

JUDGMENT of Humphreys J. delivered on Wednesday the 15th day of January 2025

1 . Nearly five years ago, the developer applied for permission for a wind farm development. That took four years to work through the planning process, with a judicial review of the permission granted (ABP-310312-21) being commenced in late February 2024. With the application of the expedited procedure, a full hearing took place in November 2024, which is pretty good by normal forensic standards. The grounds of challenge relate to lack of publication of material and inadequate appropriate assessment ( AA) under council directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (the habitats directive). On the latter point, the applicant effectively re-runs the CJEU decision in the judgment of 15 June 2023, Eco Advocacy CLG v An Bord Pleanála, C-721/21, ECLI:EU:C:2023:477, where similar demands for narrative, point-by-point replies to submissions were rejected by the CJEU, on a reference in proceedings brought by the very same applicant. Surprisingly, despite repeating those dismissed claims here, the applicant failed to acknowledge the implications of the points having been dismissed as a basis for relief in the earlier proceedings. When your point doesn't make it back in one piece from Luxembourg, what's the point in pursuing it further in a domestic court at any level? A judgment of the CJEU or for that matter an apex domestic court isn't just an opening suggestion in a further round of negotiation with an applicant. It is meant to resolve the issue for good one way or the other. This applicant's approach of re-arguing such points without anything definitively new sounds, as always, vaguely plausible at first reading, but is in substance a recipe for endless litigation. The developer might say that we got more than a taste of that here.

Geographical context

2 . The development concerns the construction of up to eight wind turbines with a tip height of up to 185 metres and all associated foundations and hardstanding areas at Townlands of Dernacart Forest Upper and Forest Lower, Co. Laois.

3 . The development site is located on the Garryhinch Bog Group, which involves two subsites, the Garrymore subsite (immediately adjacent to the turbines) and a site to the east of this, the Garryhinch subsite.

4 . The Slieve Bloom Mountains Special Protection Area, designated by S.I. No. 184 of 2012 — European Communities (Conservation of Wild Birds (Slieve Bloom Mountains Special Protection Area 004160)) Regulations 2012, is located c. 4.7 kilometres to the southeast of the proposed windfarm and is designated for the protection of the Hen Harrier.

Facts

5 . On 17th February 2020, Statkraft Ireland Limited ( Statkraft) applied to Laois County Council (the council) for planning permission for a development comprising the construction of up to eight wind turbines with a tip height of up to 185 metres and all associated foundations and hardstanding areas and all associated works.

6 . The applicant lodged a submission on the application with the council on 22nd March 2022.

7 . The Development Applications Unit (the DAU) of the Department of Culture, Heritage and the Gaeltacht (the department) made a submission to the council on 24th March 2022. This is regarded as the first submission of the National Parks and Wildlife Service ( NPWS).

8 . Further information ( FI) was sought by the council on 2nd June 2020.

9 . Statkraft submitted the requested FI on 8th March 2021, including amendments to the environmental impact assessment report.

10 . The FI was the subject of a submission from the department / NPWS dated 1st April 2021. This is regarded as the second submission of the NPWS.

11 . The council's planner prepared a report dated 27th April 2021, recommending that permission be refused.

12 . On 30th April 2021, the council issued its decision to refuse planning permission for the proposed development.

13 . Statkraft appealed the council's decision to An Bord Pleanála (the board) on 26th May 2021.

14 . The applicant also lodged a third-party appeal with the board on 24th May 2021.

15 . On 24th June 2021, Statkraft lodged a response to third party appeals with the board.

16 . The inspector's report dated 28th September 2022 records that a site inspection was carried out on 25th August 2022. The inspector recommended that permission should be granted for the proposed development, subject to 26 conditions.

17 . The board issued a notice to Statkraft under s. 132 of the Planning and Development Act 2000, as amended (the 2000 Act) on 13th January 2023, requiring Statkraft to submit information on or before 2nd February 2023.

18 . Statkraft responded to that request on 31st January 2023.

19 . The inspector prepared an addendum report dated 5th December 2023, recommending that permission be granted subject to conditions.

20 . A board direction (BD-0149915-23) was made on 20th December 2023, stating that the submissions on file and the inspector's report were considered at the board meetings held on 10th January 2023, 13th April 2023 and 19th December 2023.

21 . On 3rd January 2024, the board granted planning permission in respect of the proposed development subject to 26 conditions.

Procedural history

22 . The proceedings were issued on 27th February 2024, and the application for leave to apply for judicial review was opened on the same date.

23 . The board and Statkraft were served with a courtesy copy of the pleadings on 28th February 2024.

24 . On 4th March 2024, I granted leave to apply for judicial review on standard terms for all reliefs and on all grounds with liberty to file an amended statement of grounds to seek a specific relief (now 1A) regarding non-publication of material.

25 . The applicant issued an originating notice of motion on 7th March 2024, with a return date of 8th April 2024.

26 . The applicant filed an amended statement of grounds on 7th March 2024.

27 . The board accepted that s. 50B of the 2000 Act applies to the proceedings by letter dated 15th March 2024.

28 . Statkraft accepted that s. 50B of the 2000 Act applies to the proceedings...