Kavanagh v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 29 May 2020
• Neutral Citation: [2020] IEHC 259
• Docket Number: [2019/223 JR]
• Court: High Court
• Date: 29 May 2020

BETWEEN

JAMES KAVANAGH

APPLICANT

AND

AN BORD PLEANÁLA

AND

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

HIGHFIELD SOLAR LIMITED

AND

WICKLOW COUNTY COUNCIL

NOTICE PARTIES

[2020] IEHC 259

Brian O'Moore J.

[2019/223 JR]

THE HIGH COURT

Judicial review – Planning permission – Environmental Impact Assessment – Applicant seeking judicial review – Whether the provisions of the Planning and Development Regulations 2001 and/or the Environmental Impact Assessment Directive required an Environmental Impact Assessment to be carried out in respect of the development of a solar farm

Facts: The first notice party, Highfield Solar Ltd, on the 5th of December 2017, applied to the second notice party, Wicklow County Council, for planning permission for the development of a Photovoltaic (PV) solar farm and associated works. On the 13th of June 2018, Wicklow County Council made a decision to grant planning permission in respect of the proposed development. The applicant, Mr Kavanagh, appealed that decision to the first respondent, An Bord Pleanála (the Board), by letter of his solicitors dated the 10th of July 2018. By direction dated the 13th of February 2019, the Board decided to grant permission for the development. The Board order was dated the 21st of February 2019. Mr Kavanagh applied for, and obtained, leave to seek judicial review of the decision by order of the 29th of April 2019. While a number of grounds were pleaded by Mr Kavanagh, at the hearing his counsel made it clear that the only issue before the High Court related to the contention that the provisions of the Planning and Development Regulations 2001 and/or the Environmental Impact Assessment Directive required an Environmental Impact Assessment (EIA) to be carried out in respect of the development. An associated argument was advanced that if a solar energy development of this scale was excluded from the provisions of the Regulations then the second respondent, Ireland, had failed adequately to transpose the obligations of Council Directive 2014/52/EU into Irish law.

Held by O’Moore J that solar farms do not fall within the classes of projects listed in Annex I or Annex II of the 2014 Directive. He held that solar farms such as the one proposed by Highfield Solar Ltd do not fall within Annex I or Annex II of the EIA Directives, in any of their forms. He found that the 2014 Directive does not require an EIA to be carried out in respect of planning applications for the construction and operation of solar farms. He held that, inasmuch as the State had not made such a requirement part of Irish law, there was no failure on the part of the State to give effect to the provisions of the 2014 Directive. He decided that there was no need for him to seek the assistance of the CJEU by referring any aspect of this dispute to it. He held that the issue of EU law as to the scope of the Directive was sufficiently clear for it to be decided by him without any such reference.

O’Moore J held that he would dismiss Mr Kavanagh’s application for judicial review and would hear the parties in due course on the question of costs.

Application dismissed.

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 29th day of May, 2020.

1 On the 5th of December 2017 the First Notice Party (“Highfield”) applied to the Second Notice Party (Wicklow County Council) for Planning permission for the development of a Photovoltaic (PV) solar farm and associated works. The parties agree that the nature of the development is broadly set out at pages 6 and 7 of the Ecological Impact Statement prepared for Highfield, and exhibited at “JK5” to the affidavit of the Applicant (Mr. Kavanagh) grounding this application for judicial review.

2 On the 13th of June 2018 Wicklow County Council made a decision to grant planning permission in respect of the proposed development; Mr. Kavanagh appealed this decision to the First Respondent (“the Board”) by letter of his solicitors dated the 10th of July 2018. While there are several grounds of appeal, I will concentrate on the ground relevant to the judicial review as opened before me.

3 At paragraph 6 of the letter appealing the decision of Wicklow County Council, the following is states:-

“The development is of such a size and scale as to require an Environmental Impact Assessment given the extent of the lands which comprise a Site area of 59 hectares, the extent of the residential development so close to the site with 14 dwellings within 200-250m of the site, and a significant number as close as 150m, the present [sic] of existing established authorised land use which is incompatible with the proposed activity and in particular the Stud Farm Activities on our clients lands which cannot be reconciled with or continued if the development proposed is built. This is a large industrial development in a rural area, generating at peak a significant output of electricity and even if the thresholds are not exceeded as per Schedule 5, Part 2 paragraph 3(a) of the Planning and Development Regulations the precautionary principle must apply and the development must be subject, even as a sub-threshold development, to an Environmental Impact Assessment.”

4 The Board appointed an Inspector to report to it on the issues raised in the appeal. That Inspector, Ms. Emer Doyle, reported to the Board on the 4th of January 2019. In that report, the Inspector expressed the following view on the need for an Environmental Impact Assessment (“EIA”):-

“The appellant considers that the development is of a size and scale as to require an Environmental Impact Assessment.

Schedule 5 of the Planning and Development Regulations 2001, (as Amended), sets out Annex I and Annex II projects which mandatorily require an EIS. Part 1, Schedule 5 outlines classes of development that require EIS and Part 2, Schedule 5 outlines classes of development that require EIS but are subject to thresholds. I have examined the Part 1, Schedule 5 projects and I do not consider that a solar farm is included in any of these project descriptions. I have also examined the Part 2, Schedule 5 projects and although I note that while there are some projects under Paragraph 3 ‘Energy Projects’ which relate to energy production, I do not consider that these projects would be applicable to a solar farm as proposed. In reaching this conclusion I have regard to the other recent solar farm developments before the Board, where a similar conclusion was reached in each case.”

5 By Direction dated the 13th of February 2019, the Board decided to grant permission for the development. In doing so, the Board stated:-

“The Board decided to grant permission generally in accordance with the Inspector's recommendation […]”

6 In making its determination, it is clear that the Board accepted the view of the Inspector that this class of development did not require an EIA.

7 The Board Order in respect of the appeal is dated the 21st of February 2019. Mr. Kavanagh applied for, and obtained, leave to seek judicial review of the decision by Order of the 29th of April 2019.

8 While a number of grounds were pleaded by Mr. Kavanagh, at the hearing his Counsel made it clear that the only issue before me related to the contention that the provisions of the Planning and Development Regulations 2001 (“the Regulations”) and/or the Environmental Impact Assessment Directive required an EIA to be carried out in respect of the development. An associated argument was advanced, rather diffidently, that if a solar energy development of this scale was excluded from the provisions of the Regulations then the Second Respondent (Ireland) had failed adequately to transpose the obligations of Council Directive 2014/52/EU into Irish law.

9 It should also be noted that, at the opening of the hearing before me, I was informed that the same issue had been canvassed in an earlier hearing before McDonald J. However, given that the parties were ready to proceed with Mr. Kavanagh's application for judicial review the consensus was that I should go ahead with the substantive hearing. In particular, there was always the possibility that the matter before McDonald J. might be decided on some other point. As it happens, the judgment of McDonald J. decides the central issue in the Kavanagh proceedings; that decision, Sweetman v. An Bord Pleanála [2020] IEHC 39, is one to which I will shortly return.

A. The EIA Directives.

10 The EIA Directive, in its original form (85/337/EEC) contains recitals which set out the need for the assessment of the environmental effects of certain public and private projects. Particular emphasis was placed on these recitals by Counsel for Mr. Kavanagh. The relevant recitals read as follows:-

“Whereas general principles for the assessment of environmental effects should be introduced with a view to supplementing and coordinating development consent procedures governing public and private projects likely to have a major effect on the environment;

Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out; whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question;

Whereas the principles of the assessment of environmental effects should be harmonized, in particular with reference to the projects which should be subject to assessment, the main obligations of the developers and the content of the assessment;

Whereas projects belonging to certain types have significant effects on the environment and these projects must as a rule be subject to systematic assessment;

Whereas projects of other types may not have significant...