Element Power Ireland Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice Robert Haughton
• Judgment Date: 28 September 2017
• Neutral Citation: [2017] IEHC 550
• Docket Number: 2016/920 JR
• Court: High Court
• Date: 28 September 2017

Between

ELEMENT POWER IRELAND LTD

Applicant

and

AN BORD PLEANÁLA

Respondent

[2017] IEHC 550

Haughton Robert J.

2016/920 JR

THE HIGH COURT

JUDICIAL REVIEW

Environment, Construction and Planning – Draft Strategic Environmental Assessment Scoping Report for Renewable Electricity Policy and Development Framework ('2016 Framework Report') – Refusal to proposed development – Judicial review – The Planning and Development Act, 2000 – 2006 Wind Energy Planning Guidelines ('WEDG 2006').

Facts: The applicant sought an order of certiorari for quashing the decision of the respondent for refusing to grant permission to the applicant for development of wind farms at the specified location. The applicant argued that the decision of the respondent was ultra vires as it could not refuse to give consent on the basis that there were no national and local strategies affecting the sector in which the proposed development was intended to function. The respondent contended that the existing guidelines supported the construction of wind farms but they did not address the issue of the location of wind turbines and thus, the application was premature.

Mr. Justice Robert Haughton granted an order of certiorari to the applicant and quashed the respondent's decision in its entirety. The Court, however, held that only one reason advanced by the respondent was invalid and the rest of the decisions would stand. The Court remitted the matter back to the respondent for consideration based on the applicant's submissions and evidence. The Court directed the respondent to allow the applicant to make further submissions in support of his application. The Court found that the Reason 1, which was that the proposed development was premature pending the adoption of required policy framework, was unreasonable as the respondent had an obligation to evaluate the planning application under the WEDG 2006 and two relevant County development plans. The Court noted that Reason 2 and Reason 3 were logical in the sense they evaluated the adverse impact of the proposed development on the environment and creation of traffic hazards.

Judgment of Mr Justice Robert Haughton delivered the 28th day of September, 2017.

Paragraph Title

Introduction

1 In these proceedings the applicant seeks an order of certiorari quashing the decision (Ref. PL09.PA0041) of the respondent ('the Board') dated 12 October, 2016, refusing to grant permission to the applicant for development comprising Maighne Wind farm consisting of up to 47 wind turbines, 1 electricity substation and associated works and/or a declaration that the Board acted ultra vires in refusing permission on the basis of the absence of any national wind energy strategy with a spatial dimension or of wind energy strategies at local level. The applicant further seeks an order remitting the planning application to the Board.

Background Facts

2 The history of the planning application is that the Board decided by order dated 24, March 2015, that the proposed development would be a strategic infrastructure within the meaning of section 37A of the Planning and Development Act, 2000 (as amended) ('the 2000 Act'). On 9 April, 2015, the applicant lodged the application with the Board. The main elements of the proposal include –

• the erection of 47 turbines in five distinct clusters with an overall tip height of 169m (maximum);

• 31km of new site access tracks with associated drainage;

• upgrade of 10km of existing tracks;

• temporary alterations to public roads to facilitate delivery of turbines;

• provision of 75km of medium voltage (33kV) underground cabling between the proposed turbines and the proposed substation, which 36km will be laid within the public roadway;

• a proposed grid connection;

• installation of joint bays along cable routes; and

• underground communication cables.

Of the 47 turbines, it was proposed that 45 of them would be situated in north-west County Kildare, and two of the turbines in the most northerly cluster would be situated within County Meath. The area involved covers some 1,389 hectares of generally flat or gently sloping land. An Environmental Impact Statement and a Natura Impact Statement accompanied the application.

3 The application was the subject of public notification and was sent to the required prescribed bodies, inviting submissions. In total some 808 submissions were received. The applicant issued its response to the submissions on 24 September, 2015. The Board required the applicant to submit a further public notice advising of a further opportunity to make submissions in response to the further information furnished by the applicant. A further public notice was published on 28 October, 2015.

4 No oral hearing was conducted in relation to the proposal. A report was prepared by the Board's inspector dated 4 August, 2016, running to 361 pages, which recommended refusal of the permission giving 12 reasons and considerations for her recommendations. The senior inspector's report included a number of appendices which included at appendix 1 an Assisting Report of an inspector dealing with noise and vibration, shadow flicker, traffic and transportation, health and safety issues and property values. Further reference to some of the submissions and the inspectors' reports will be made later in this judgement.

5 The Board issued a direction on 6 October, 2016, and its decision on 12 October, 2016, deciding to refuse permission for the proposed development giving three reasons as follows: –

'1. It is considered that in the absence of any national wind energy strategy with a spatial dimension or of wind energy strategies at local level in County Kildare and County Meath, the development of a large-scale wind farm comprising 47 number turbines in a number of clusters spread over an extensive geographical area straddling the boundary between the two counties would be premature pending the adoption of such strategies and would represent an undesirable precedent that could undermine any future wind energy strategy for the area. The proposed development would, therefore, be contrary to the proper planning and sustainable development of the area.

2. The Board considered that the widely dispersed cluster-based layout adopted in the proposed development would have inevitable adverse effects including a disproportionately large visual envelope, the need for extensive underground cabling in poor quality minor roads and undue proximity to areas of sensitivity from a heritage or residential point of view. The Board considered that in a situation where such adverse effects were absent the energy output from the proposed development might be realised in a more efficient and less intrusive manner by a more spatially concentrated development. The Board determined that the proposed development would, therefore, be contrary to the proper planning and sustainable development of the area.

3. Having regard to the nature, structure and condition of the existing public road network serving the development, which includes substantial sections of substandard legacy roads, and to the extensive cable trenching works proposed it is considered that the proposed development would have significant adverse effects on the long-term structural integrity of significant elements of the local road network, is thereby likely to give rise to the creation of traffic hazards and to potentially increased maintenance costs to the local authority. The proposed development would, therefore, be contrary to the proper planning and sustainable development of the area.'

The Board decided not to accept the seven further reasons given by the inspector for refusing permission, and set out its further observations in that regard.

6 The applicant was granted leave to seek judicial review by order of Humphreys J. made on 5 December, 2016. The applicant challenges the validity of all three reasons, but asserts that if the court finds the first reason to be invalid that this taints the other two reasons and/or the overall decision of the Board. In its Statement of Opposition, the Board contends for the validity of all three reasons and asserts that even if the first reason were to be held to be invalid this would not invalidate the balance of the decision or reasons 2 and 3.

Reason 1

7 The principal issue raised in these proceedings is whether the Board may lawfully refuse consent for a proposed development on the basis that it is regarded as premature in the absence of national or local strategies affecting the sector in which the development is intended to function. The applicant also pleads that the first reason is too vague and unclear to be adequate and/or intelligible.

8 The applicant's core case is that the Board acted ultra vires and/or abdicated responsibility and fettered its discretion in rejecting the application in the alleged absence of national wind energy strategy with a spatial dimension and wind energy strategies at local level. It pleads that in so doing it took into account an irrelevant consideration, and that there is no provision in the 2000 Act which permits the Board to reject and/or defer consideration of a planning application for a wind farm development on the basis of alleged absence of national and/or local wind energy strategies. Insofar as there are any existing national or local wind energy strategies, it is stated that these support the proposed development and the Board failed to have adequate or proper regard to them, or to afford them sufficient weight. In order to better understand the applicant's arguments and the Boards response it is necessary to refer to further relevant material.

9 The inspector in her report to the Board referred to submissions on the basis of an alleged policy vacuum in relation to national and local wind energy strategy with a spatial dimension. She referred...