McCallig v an Bord Pleanála and Others

JurisdictionIreland
JudgeMr. Justice Herbert
Judgment Date24 January 2013
Neutral Citation[2013] IEHC 60
CourtHigh Court
Date24 January 2013
McCallig v Bord Pleanala & Ors
JUDICIAL REVIEW
IN THE MATTER OF AN APPLICATION PURSUANT TO S. 50 OF THE PLANNING AND DEVELOPMENT ACT (AS AMENDED) AND
IN THE MATTER OF AN APPLICATION

BETWEEN

MARGARET McCALLIG
APPLICANT

AND

AN BORD PLEANÁLA
RESPONDENT

AND

DONEGAL COUNTY COUNCIL AND P.J. MOLLOY
NOTICE PARTIES

[2013] IEHC 60

[No. 291 J.R./2011]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Environmental impact assessment - Permission for proposed wind farm granted -Whether development including lands owned by applicant - Whether written consent given by applicant - Whether respondent acted ultra vires - Whether environmental impact assessment deficient - Whether decision made without sufficient information of likely impact on wild birds - Whether first notice party's prior grant of permission becoming effective if respondent's decision declared invalid - Discretion - Hynes v An Bord Pleanála (Unrep, HC, McGuinness J, 10/12/1997) approved - O'Keeffe v An Bord Pleanála [1993] 1 IR 39; Kildare County Council v An Bord Pleanála [2006] IEHC 173 (Unrep, HC, MacMenamin J, 10/3/2006) considered - Planning and Development Act 2000 (No 30), s 34 - Certiorari refused, declaration granted (2011/291JR - Herbert J - 24/1/2013) [2013] IEHC 60

McCallig v An Bord Pleanála

The applicant challenged a decision of the respondent granting the second notice party, P. J. Molloy, planning permission for a wind farm development subject to 22 conditions. The applicant”s contention was that the respondent failed to gain her and other landowners” written consent before granting planning permission as required by s. 34 of the Planning and Development Act 2000 and article 22(2)(g) of the Planning Development Regulations 2001. She claimed that the planned development would encompass lands outside the second notice party”s ownership and therefore the respondent had no jurisdiction to approve the application. She further contended that the environmental impact statement was inadequate in its investigation into the likely affect of the development on the natural wildlife and that the decision to impose a condition on the planning permission to create a management plan to protect the surrounding habitat was introduced only to complete an insufficient environmental impact statement in contravention of government policy.

The second notice party claimed that in reaching a decision, the respondent was entitled to conclude article 22(2)(g) of the Planning Development Regulations 2001 had been complied with as a letter dated the 23rd September 2009 had been previously submitted to the first notice party confirming that landowners of adjoining sites had given the required consent. The development would have no effect on the applicant”s land as the four turbines closest to the land had been withdrawn from the plan. In terms of the environmental impact statement, it was contended that the report had sufficient detail to advise the respondent in making an informed decision on the application and that the condition to prepare a management plan was not an attempt to avoid seeking further information. Leave to apply for judicial review was subsequently granted.

Held by Herbert J that the letter that purported to give the second notice party permission to encroach on the lands of the adjoining landowners was inadequate as it failed to provide a map that outlined which landowner owned what piece of land. The letter certainly did not include the applicant. It was further held that even though the number of turbines had been scaled down, the applicant”s land still remained affected due to the remaining development affecting access to a peat regeneration area that was partly on the applicant”s land which would have an effect on its value.

In terms of the environmental impact statement, it was held that the report dealt with the matter of local wildlife sufficiently and that the condition to prepare a management plan for the area was actually first proposed by the Inspector who was unable to produce a report based on year round observations. Nevertheless, the conclusion was that the risk to local wildlife was likely to be minimal. The respondent had sufficient information available on this aspect to reach a decision on the proposed development.

As such, it was held that the court should use its discretion under s. 50 of the Planning and Development Act 2000, and O. 84 of the Rules of the Superior Courts to refuse to quash the decision of the respondent on the basis that a declaration is issued that the respondent”s decision on the planned development is void in any aspect that effects the applicant”s lands.

PLANNING & DEVELOPMENT ACT 2000 S34

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 22(2)(G)

EEC DIR 85/337

PLANNING & DEVELOPMENT ACT 2000 S34(4)(A)

EEC DIR 2003/35

EEC DIR 79/409

EEC DIR 97/11

PLANNING & DEVELOPMENT ACT 2000 S128

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 22(1)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 22

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 33

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 34

EEC DIR 92/43 ART 6(3)

EEC DIR 92/43 ANNEX II

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 22(2)(B)

GAELTACHT AREAS ORDER 1956 SI 245/1956

PLANNING & DEVELOPMENT ACT 2000 S34(13)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 26(2)

PLANNING & DEVELOPMENT ACT 2000 S37(1)(B)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(5)

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

HYNES v BORD PLEANALA & ORS UNREP MCGUINNESS 30.7.1998 1998/21/8173

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 22(2)(A)

SEERY v BORD PLEANALA UNREP QUIRKE 26.11.2003 (EX TEMPORE)

FRESCATI ESTATES LTD v WALKER 1975 IR 177

HALSBURY THE LAWS OF ENGLAND 1ED VOL 10 760-762

LONDON CO COUNCIL v AGRICULTURAL FOOD PRODUCTS LTD & VITAMINS LTD 1955 2 QB 218 1955 2 WLR 925 1955 2 AER 229

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590 1982/1/1

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24(4)

PLANNING & DEVELOPMENT ACT 2000 S34(8)(F)

PLANNING & DEVELOPMENT ACT 2000 S34(11)(B)

PLANNING & DEVELOPMENT ACT 2000 S34(8)

PLANNING & DEVELOPMENT ACT 2000 S126

PLANNING & DEVELOPMENT ACT 2000 S34(11)(A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(9)(A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(9)(B)

TOWN & COUNTRY PLANNING ACT 1990 S78 (UK)

TOWN & COUNTRY PLANNING ACT 1990 S79 (UK)

THAMES WATER AUTHORITY v ELMBRIDGE BOROUGH COUNCIL 1983 QB 570 1983 2 WLR 743 1983 1 AER 836

KENNY v BORD PLEANALA (NO 1) 2001 1 IR 565 2000/11/4343

KENNY v BORD PLEANALA (NO 2) 2001 1 IR 704 2002 1 ILRM 68 2001/13/3736

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 94

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 6

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 6 PARA 1(C)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 6 PARA 2(B)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 S111(1)

PLANNING & DEVELOPMENT ACT 2000 S132

KILDARE CO COUNCIL v BORD PLEANALA UNREP MACMENAMIN 10.3.2006 2006/32/6869 2006 IEHC 173

MAHER v BORD PLEANALA & ORS 1999 2 ILRM 198 1999/17/5078

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

PLANNING & DEVELOPMENT ACT 2000 S128(1)(A)(ii)

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S21

EEC DIR 2009/147 ANNEX I

R v CORNWALL CO COUNCIL, EX PARTE HARDY 2001 ENV LR 25 2001 JPL 786

PLANNING & DEVELOPMENT ACT 2000 S143(1)(A)

GLENCRE TEO v BORD PLEANALA UNREP MACMENAMIN 2.5.2006 (EX TEMPORE)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 S111(2)

PLANNING & DEVELOPMENT ACT 2000 S50

RSC O.84

1

1. By order of this Court made on the 6 th April, 2011, the applicant was granted leave to apply for judicial review for an order of certiorari quashing the decision of the respondent made on the 11 th February, 2011, to grant permission, subject to 22 conditions, to the second notice party for a proposed wind-farm development near Glenties, Co. Donegal. Leave was also granted to seek a declaration that the 12 th such condition was ultra vires the powers of the respondent on the ground that it was imposed to supplement an inadequate environmental impact statement and, was contrary to a Circular Letter P.D.2/07, N.P.W.S. 1/07, issued by the Department of the Environment, Heritage and Local Government. Leave was also granted to seek injunctive and other reliefs on the grounds stated in the Statement of Grounds verified by the affidavit of the applicant sworn on the 5 th April, 2011. A Statement of Opposition was delivered by the second notice party on the 22 nd September, 2011, verified by an affidavit of P.J. Molloy sworn on the 22 nd September, 2011. A Statement of Opposition was delivered by the respondent on the 5 th October, 2011, verified by an affidavit of Chris Clarke sworn on the 5 th October, 2011.

2

2. The Statement of Grounds delivered by the applicant advanced 23 grounds. A number of these grounds were abandoned by senior counsel for the applicant at the hearing before me. I am satisfied that the remaining grounds may be stated in an abbreviated though nonetheless comprehensive form as follows.

3

3. The applicant asserts that the respondent erred in law and acted without jurisdiction in deciding to grant permission for the proposed development which included lands owned by her without her written consent as required by s. 34 of the Planning and Development Act 2000, and, article 22(2)(g) of the Planning Development Regulations 2001. It also included land owned by a number of other landowners without their written consent.

4

4. The applicant contends that the respondent erred in law and failed to comply with the principles of audi alteram partem and of natural and constitutional justice in failing to consider properly or at all her...

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