North Meath Wind Farm Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 07 March 2018
• Neutral Citation: [2018] IEHC 107
• Court: High Court
• Docket Number: [2017 No. 687 JR]
• Date: 07 March 2018

BETWEEN:

NORTH MEATH WIND FARM LIMITED

AND

ELEMENT POWER IRELAND LIMITED

APPLICANTS

-AND-

AN BORD PLEANÁLA

RESPONDENT

[2018] IEHC 107

Twomey J.

[2017 No. 687 JR]

(2017 No. 171 COM)

THE HIGH COURT

COMMERCIAL

Planning & Development – The Planning and Development Act, 2000 – Refusal to give planning permission – Wrong characterisation – Judicial review – Assessment of Inspector's report

Facts: The first applicant sought an order of certiorari for quashing the decision of the respondent for refusing to give it planning permission to build a wind farm. The first applicant contended that there were errors in the Inspector's report and that the respondent had made an error while categorising the proposed development site as 'hilly and farmland' rather than 'hilly and flat farmland'.

Mr. Justice Twomey refused to grant an order of certiorari to the first applicant. The Court held that the methodology used by the respondent to assess the effect of development on cultural and heritage sites was correct. The Court found that there was sufficient material before the respondent to make the categorisation of the land as it did and the Court would not interfere in the findings made by the respondent.

JUDGMENT of Mr. Justice Twomey delivered on the 7th day of March, 2018

Summary

1 This is a judicial review by the applicant, North Meath Wind Farm Limited (which is joined as a co-applicant by its shareholder, Element Power Ireland Limited), of a decision of An Bord Pleanála ('the Board') on 30th June, 2017. That decision was a refusal of the application (PA0046) to develop a wind farm of 25 wind turbines with a maximum height of 169 metres at a site, known as Castletownmoor, which is 2.9 kilometres north east of Kells, Co. Meath.

2 Although not determinative of any of the issues in this case, the Board pointed out that, based on the Wind Energy Development Guidelines 2006 ('the Guidelines') issued by the Department of Environment, Heritage and Local Government, the proposed development would be regarded as a large wind farm. The Board also submitted, and it was not controverted by the applicant, that the wind turbines to be used in the proposed development, at 169 metres would be among the tallest in the country.

3 The applicant seeks an order of certiorari of the refusal of the Board to grant planning permission and an order to remit the matter back to the Board.

4 On the 10th April, 2017, a Report was prepared on the proposed development by a member of the Inspectorate of the Board. This Report recommended the refusal of the planning permission. The key issue in this case is whether the alleged errors made by the Inspector in his assessment of the development, which Report was allegedly acted upon by the Board, are such as to vitiate the decision of the Board to refuse planning permission.

5 Unlike with an appeal on the merits of a decision, in a judicial review of a decision, there is a very high threshold to be reached for that decision to be found to be invalid. In this case, this Court finds that despite the alleged error by the Board in characterising the site as overwhelmingly " hilly and farmland" rather than as being " hilly and flat farmland" and " flat peatland" and despite the admitted error in the Inspector's Report regarding the number of buildings within a defined radius of a turbine, there was a reasonable basis upon which the Board could refuse planning permission. In addition, there was material before Board which was capable of supporting that decision. Accordingly, the application for certiorari is refused for the reasons set out below.

The kernel of the case

6 Counsel for the applicant described the " kernel of the ground of challenge" as the alleged error by the Board in its categorisation of the proposed development site as overwhelmingly " hilly and farmland" rather than as being "hilly and flat farmland" and " flat peatland". This categorisation of the land in question is contained in the Inspector's Report and it runs counter to the claim, in the Environmental Impact Statement ('EIS') prepared on behalf of the applicant, that the land in question was both " hilly and flat farmland" and " flat peatland". The Grounding Affidavit of Richard Barker dated 27th August, 2017, puts the matter in the following terms:

'The Inspector and the Board erred fundamentally in finding that the landscape character type is ' overwhelmingly ... Hilly and Flat Farmland' on the basis that the issues raised in the [the Guidelines] for the siting and design of wind turbines on Hilly and Flat Farmland were very different from those for Flat Peatland and include ' respect for scale and human activities, with due regard given to houses, farmsteads and centres of populations'.'

Importance of the characterisation of the lands

7 It is clear that the reason why the applicant was anxious that the Board categorise the lands in Castletownmoor as partly " flat peatland" was because under the Guidelines, to which the Board must have regard under s. 28(2) of the Planning and Development Act, 2000, there is a greater scope for planning permission to be granted for wind farms on the lands if they were categorised as " flat peatland" as well as " hilly and flat farmland".

8 This is because " flat peatland" is described in Chapter 6 of the Guidelines at paragraph 6.9.3 in, inter alia, the following terms:

'Landscapes of this type comprise a vast planar extent of peatland and have significant potential for future wind energy development'.

9 The Guidelines go on to describe the uses of such lands for wind farms in the following terms:

'The preferred approach here is one of large scale response. The vast visual openness with few, if any, dominant geometric elements provides a certain freedom in the siting and design of wind energy developments. [...] Wind energy developments can be placed almost anywhere in these landscapes from an aesthetic point of view [...] The vast scale of this landscape type allows for a correspondingly large spatial extent for wind energy developments.'

10 In contrast, " hilly and flat farmland" is described at paragraph 6.9.2 of the Guidelines in, inter alia, the following terms:

'Farmsteads and houses are scattered throughout, as well as occasional villages and towns.'

11 Also in contrast to what is said in the Guidelines regarding wind farms on " flat peatland", the following is what is said in the Guidelines regarding wind farms on " hilly and flat farmland":

'The essential key here is one of rational order and simplicity as well as respect for scale and human activities [...] Although hilly and flat farmland type is usually not highly sensitive in terms of scenery, due regard must be given to houses, farmsteads and centres of population [...] [The spatial extent of the wind farm] can be expected to be quite limited in response to the scale of fields and such topographic features as hills and knolls. Sufficient distance from buildings, most likely to be critical at lower elevations, must be established in order to avoid dominance by the wind energy development [...] Careful consideration needs to be given to tall turbines in this landscape given the potential proximity of houses [...] It is important that wind energy development is never perceived to visually dominate'.

12 The difference in approach to siting wind farms on the two landscapes is illustrated most starkly at Table 1 in Chapter 6 of the Guidelines which summarises the recommendations for wind energy developments in different landscapes as follows:

Spatial Extent	Height
Hills and Farmland	Generally limited to small wind energy developments	Medium typically preferred but tall may be acceptable
Flat Peatland	Large.	Tall.

13 The applicant argues that the alleged error made by the Board in its characterisation of the lands is so serious as to vitiate the decision of the Board. In its Statement of Grounds at paragraph 9 it puts the matter as follows:

'The Respondent erred fundamentally in its interpretation of the Wind Energy Development Guidelines 2006 (hereinafter 'WEDG') and, in particular, Chapter 6 thereof, such that the Board and its Inspector acted perversely in selecting a single landscape character type (being 'Hilly and Flat Farmland') against which the design response of the wind farm would thereafter be rigidly assessed, instead of applying the correct design principles set out in the WEDG to a landscape composed of a mix of two landscape character types (being both 'Hilly and Flat Farmland' and 'Flat Peatland').'

1st Ground: Mischaracterisation of the landscape of the development site

14 Thus, the first and key ground of challenge to the Board's decision is its (and the Inspector's) alleged error in characterising the proposed development site as being of just one character type, i.e. overwhelmingly " hilly and flat farmland" and in so doing applying very different criteria to its decision, namely a "respect for scale and human activities with due regard being given to houses, farmsteads and centres of population" than if the development site had been characterised as both " hilly and flat farmland" and " flat peatland", in which case it is assumed that there would have been a greater chance of the planning permission being granted since wind farms are more "acceptable", to use a lay term, on " flat peatland" than on " hilly and flat farmland".

Factual error admitted by the Board

15 In support of the applicant's claim that the Board erred in its characterisation of the land as " hilly and flat farmland", the applicant also relies on an error in the 268 page Report of the Inspector dated 10th April, 2017, which error is admitted by the Board. This error, and its significance to the applicant's claim that the refusal of planning permission by the Board should be set aside, is described in para. 19 of the Grounding Affidavit of Richard Barker...