Environment & Planning Group Update July 2018 - Domestic News

Author:Ms Deborah Spence, Danielle Conaghan, Yvonne Scannell, Laura Rafferty, Jacinta Conway, Maeve Delargy, Eimear O'Hanrahan and Eva E Barrett
Profession:Arthur Cox
 
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DOMESTIC CASES

Connelly v An Bord Pleanála [2018] IESC 31

Supreme Court upholds High Court's determination that the Board's AA was invalid and that notification of a decision that AA required must be given, along with reasons; but disagrees with the High Court on other points

This case involved a wind farm, where 6 turbines were initially proposed, but subsequently was re-designed as a 4 turbine wind farm. An Bord Pleanála ("the Board") granted permission for the development, but this decision was challenged by Ms Connelly on the basis that the Board had not given notice of the Appropriate Assessment ("AA") screening determination finding that an AA was required and had not included reasons for the determination.

In this context, the High Court considered whether or not the Board's AA and its reasons were adequate. The Court held that despite the change in development there was no description, analysis or evaluation of that information in the AA decision of the Board, and instead there was 'generically worded' text. Therefore, the High Court overturned the Board's decision to grant planning permission on the basis that the Board's AA determination and its accompanying reasons were deemed inadequate.

The Board appealed the judgment of the High Court directly to the Supreme Court on the grounds that the High Court judge set an unreasonably high threshold as regards the reasons to be given where a decision involves an AA (or an Environmental Impact Assessment ("EIA")).

The Supreme Court did the following:

Upheld the High Court's judgment that the Board must provide notification of its decision that an AA is required, along with reasons for that decision. Agreed fully with the High Court's conclusion that no reasons could be found anywhere to suggest why the Board decided a full AA was required. The Supreme Court agreed with the High Court's decision that a failure to provide reasons as to why an AA was required could not, in and of itself in the circumstances of this case, render a permission invalid when an AA was actually carried out and where it is clear from the AA that all potential adverse effects on the relevant protected area had been identified and the necessary analysis conducted which would permit permission to be granted. In the circumstances of this case however, the AA conducted was invalid as it did not make specific findings of the complete, precise and definitive nature required. The Court cited Kelly [2014] IEHC 200 with approval and noted that there are four distinct requirements which must be satisfied for a valid AA decision, which did not occur in this case: The AA must identify in light of the best scientific knowledge all aspects of the project which can, by itself or in combination with other plans or projects, affect the European site in light of its conservation objectives; There must be complete, precise and definitive findings regarding the potential effects on any relevant European site; On the basis of these findings, the Board must be able to determine that no scientific doubt remains as to the absence of the...

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