Grace v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Mr. Justice Fullam |
| Judgment Date | 01 October 2015 |
| Neutral Citation | [2015] IEHC 593 |
| Docket Number | [533JR/2014] |
| Court | High Court |
| Date | 01 October 2015 |
[2015] IEHC 593
THE HIGH COURT
BETWEEN
AND
AND
AND
Local Government – Planning & Development – S. 50 of the Planning and Development Act 2000 – Judicial review – Environmental Impact Assessment (EIA) – Locus standi – Sufficient interest – Council Directive 2011/92/EU
Facts: The applicants sought an order of certiorari for quashing the decision of the respondent for granting planning permission to the first and second named notice parties for the construction of wind turbines on a wind farm in lieu of an appeal from a decision of the local county council. The applicants also sought declarations that the decision of the respondent was in breach of Council Directive 92/43EEC, that the respondent had failed to carry out an adequate EIA under Council Directive 2011/92/EU and that the applicants had sufficient interest for initiating the present proceedings under s. 50 (3) (b) of the Planning and Development Act, 2000.
Mr. Justice Fullam refused to grant an order of certiorari to the applicants. The Court held that in order to challenge planning actions by judicial review, the applicants had to show sufficient interest as mentioned under s. 50 (3) (b) of the said Act of 2000, which the applicants had failed to show as they had neither participated in the decision-making process nor were affected by it. The Court opined that effective public participation by the public under Council Directive 2011/92/EU was an inevitable part of the decision-making process and failure to do so would not by itself be determinative of the locus standi of the applicants unless the applicants would be able to give a cogent explanation for their non-participation. The Court found that the consideration of the inspector's report by the respondent was sufficient compliance of its obligation to carry out an environment impact assessment.
In this judicial review, the applicants challenge a grant of planning permission to construct a 16 turbine wind farm development proposed for the Slieve Felim to Silvermines Special Protection Area (SPA), Bunkimalta, Co. Tipperary. The objective of the SPA is to maintain and restore the favourable conservation condition of the hen harrier, an Annex 1 protected species under the Birds Directive.
The site is located in North Tipperary on the slopes of Keeper Hill in the Silver Mines Mountains. The proposed development site is of a stated area of 832 hectares and is primarily within the ownership of the second named notice party Coillte and comprises a Sitka Spruce and Lodge Pole pine forest dating from the 1950s and 1960s. The stated total area of the overall Keeper Hill forest is 3,385 hectares. The character of the site is dominated by commercial forestry, which is the main habitat within which the turbines will be placed.
The site was designated as an SPA in 2007, with the conservation objective:-
"Maintain or restore the favourable conservation condition of the hen harrier which is listed in Annex 1 of the Birds Directive."
The first named applicant is a self-employed crafter and since 2005 has resided at Grouse Hall, Milestone, Thurles, Co. Tipperary. Her home is situated less than 1km from the SPA and 10km from Keeper Hill. Ms Grace is involved in a number of craft and community associations.
The second named applicant is an environmentalist and resides at Bunahowen, Cashel, Co. Galway.
The applicants seek an order ofcertiorari quashing the decision of the respondent made on the 22nd July, 2014 granting the first and second named notice parties planning permission for 16 wind turbines and ancillary development.
The respondent is the statutory authority which granted planning permission on appeal from a decision of North Tipperary County Council.
The first and second notice parties are State bodies and are joint developers of the Bunkimalta Wind Farm.
ESB International, an associate company of the first notice party, processed the planning application and appeal. The second notice party is owner of the subject land and is engaged in commercial forestry.
The third notice party is the department of government (DAHG) responsible for the National Parks and Wildlife Service (NPWS) charged with the protection of habitats and certain avian species. DAHG took part in the planning process before North Tipperary County Council and the Appeal to the Board up to 30th September 2013.
Essentially, the applicants seek three reliefs:
(i) A declaration that the decision of the respondent was in breach of Council Directive 92/43EEC of 21 May, 1992 ("the Habitats Directive") in that the respondent failed to carry out an adequate appropriate assessment as required by Article 6 of the Directive having regard to the jurisprudence of the Court of Justice of the European Union and in particular the decision in case C-258/11,Sweetman & Others v. An Bord Pleanala & Others, unreported judgment of the court (Third Chamber) of llth April, 2013. The applicants allege that the respondent wrongly took replacement habitat into account as a mitigatory measure in carrying out an Appropriate Assessment under Article 6.3, whereas the correct procedure was to treat it as a compensatory measure under Article 6.4.
(ii) A declaration that the respondent failed to carry out an adequate Environmental Impact Assessment (EIA) as required by Article 3 of Directive 2011/92/EU of the European Parliament and of the Council of 13th December, 2011 ("the Consolidated Environmental Impact Assessment (EIA) Directive) and S.171A of the Planning and Development Act 2000 as amended. The applicants allege that the respondent failed to assess the climate impacts of clear felling of 41.7 hectares of existing forest.
(iii) A declaration that both applicants havesufficient interest for the purposes of s.50A (3)(b) of the Planning and Development Act, 2000 as amended. This issue arises because the applicants did not participate either in the decision-making process before the local planning authority, North Tipperary County Council, and in the subsequent appeal to An Bord Pleanála
The particular SPA involved is one of the strongholds for hen harriers in the country. The mix of forestry and open areas provides optimum habitat conditions for the hen harrier.
In overall terms, the plan proposes that the potential loss of habitat of 162.7 hectares at turbine locations and surrounding exclusion zones of 250m would be mitigated/replaced by the provision of 164.3 hectares of habitat, during the lifetime of the project.
According to the developer, the development would allow a mosaic of different aged strands to develop which would optimise the value of the area to foraging hen harriers. The managed replanted area is strategically placed between two areas of open bog and heath (Keeper Hill and Knockane) and would create a foraging corridor linking optimum habitat areas.
The developer acknowledges that foraging habitat rather than nesting habitat limits the size of the hen harrier population. The 'loss' of hen harrier habitat is based primarily on the loss of pre-thicket second rotation forestry from the development, which scientific studies have shown is important for hen harrier nesting and foraging. The SHMP is focused on the continuous provision of foraging habitat within the site. Optimum habitat conditions occur where there is a mosaic of vegetation yields.
On 26th March, 2004 the developers obtained a prior planning permission for a development comprising 17 wind turbines on the site. The respondent upheld the decision of the local planning authority. At that time, the site had not been designated an SPA.
On the 12th February, 2013, the developer submitted its planning application to North Tipperary County Council. The documentation submitted included an Environmental Impact Statement, a Natura Impact Statement and the Species and Habitat Management Plan. The developer engaged in on-site discussions with representatives of the Department of Agriculture, Heritage and the Gaeltacht (DAHG) / National Parks and Wildlife Service (NPWS).
On 13th March, 2013, the deadline date for submissions to the local authority, DAHG made a submission recommending refusal for the following reasons:
(i) 162.76 hectares of hen harrier foraging habitat would be lost through a displacement effect around the turbines based on the best scientific advice and the proposed removal of trees and sensitive replanting was not acceptable as mitigatory habitat as it was not demonstrated beyond reasonable doubt that the habitat would be used by foraging hen harriers;
(ii) The Appropriate Assessment (AA)/NIS submitted by the developer did not adequately address the cumulative impacts of the proposed development in combination with other windfarms in the SPA; and
i (iii)The project should wait until mid-2015 by which time the DAHG would have drawn up a national Threat Response Plan for hen harriers based on further research commissioned to University College Cork to"provide greater scientific certainty to assist decision-making."
On the 2nd April, 2013, the local authority refused planning permission stating the reason as follows:
"The proposed development is located within the Slieve Felim to Silver Mines Mountains SPA. It is a policy objective as set out in the County Development Plan 2010 to...
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Grace and anor v an Bord Pleanála
...Development Act 2000, the proceedings were commenced by judicial review and were heard in the High Court. Fullam J dismissed the claim ([2015] IEHC 593). As further required by s. 50A(7) of the 2000 Act, no ordinary appeal could be pursued from that decision except with a certificate of the......