North Westmeath Turbine Action Group v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 01 June 2022
• Neutral Citation: [2022] IECA 126
• Court: Court of Appeal (Ireland)
• Docket Number: RECORD NOS 2020/55 & 2020/56

Between

North Westmeath Turbine Action Group and North Westmeath Turbine Action Group Company Limited by Guarantee

Appellants

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

Westmeath County Council, Coole Windfarm Limited. Greenwire Limited/Greenwire Windfarms Limited

Notice Parties

[2022] IECA 126

RECORD NOS 2020/55 & 2020/56

THE COURT OF APPEAL

CIVIL

Planning permission – Amendment of statement of grounds – Strike-out application – Appellants appealing an order striking out proceedings as bound to fail – Whether the appellants’ amendment application should have been addressed before the State respondents’ strike-out application

Facts: The appellants, North Westmeath Turbine Action Group and North Westmeath Turbine Action Group Company Limited by Guarantee (NWTAG), challenged a decision of the first respondent, An Bord Pleanála (ABP), of 26 March 2019 which granted (subject to a number of conditions) planning permission for the construction of a windfarm consisting of up to 13 wind turbines with a tipheight of up to 175 metres, together with associated works, in the townland of Coole and adjacent townlands in Co. Westmeath (the Decision). In August 2019, the second and third respondents, Ireland and the Attorney General (the State Respondents), brought an application to dismiss/strike-out the proceedings against them pursuant to Order 19, Rules 27 and/or 28 RSC and/or the inherent jurisdiction of the Court, asserting that the proceedings disclosed no reasonable cause of action as against them and/or were frivolous and vexatious and/or were doomed to fail. That application prompted NWTAG to apply to amend the statement of grounds by the addition of two further declarations. The two motions came on for hearing before the High Court (Twomey J) over 2 days in November 2019. The Judge gave judgment on the two motions on 19 December 2019. The Court granted the motion of the State parties for an order striking out the proceedings against them as bound to fail and refused the application of NWTAG to amend the statement of grounds. Separate orders were drawn up in respect of each of the motions. NWTAG appealed to the Court of Appeal against both orders. On appeal, NWTAG argued that the High Court erred in not addressing its amendment application first. Even in the absence of the amendments, NWTAG submitted that the Judge erred in acceding to the strike-out application.

Held by Collins J that the Judge erred in refusing NWTAG’s application to amend its statement of grounds by the addition of declaratory relief against the State Respondents. Collins J held that it did not follow that NWTAG’s appeal from that decision should be allowed and that it should be permitted to make that amendment. In circumstances where the High Court had heard NWTAG’s challenge to the ABP Decision, Collins J was not satisfied that the interests of justice favoured allowing the statement of grounds to be amended so as to permit NWTAG to pursue what would be in effect a stand-alone action for declaratory relief against the State; that was particularly so when the outcome of the challenge to the ABP Decision may have a significant impact on any claim for declaratory relief. Collins J held that NWTAG could, if appropriate, pursue a claim for declaratory relief against the State following the determination of its challenge to the ABP Decision; at that stage, the parameters of any claim would be clearer. Collins J held that NWTAG would not suffer any material prejudice. Accordingly, Collins J refused the amendment appeal. Collins J held that the strike-out appeal was, in those circumstances, moot. Collins J held that no order that the Court might make on that appeal could have any practical effect or benefit given that NWTAG’s challenge to the ABP Decision had been heard. In those circumstances, Collins J held that an order setting aside the order made by the High Court striking out the claim against the State Respondents would, in practical terms, be entirely devoid of purpose or concrete effect. Collins J therefore dismissed the strike-out appeal.

Collins J held that although NWTAG had not succeeded in reversing the orders made by the High Court, it had prevailed on many of the issues argued. In the circumstances, Collins J’s provisional view was that there should be no order for costs on either appeal.

Appeals dismissed.

Unapproved – no redactions required

JUDGMENT of Mr Justice Maurice Collins delivered on 1 June 2022

BACKGROUND

1 The essential background to the two appeals before the Court is set out in the judgment that I gave (Noonan and Binchy JJ agreeing) dismissing applications brought by Ireland and the Attorney General (“ the State Respondents”) to strike out the appeals on the basis that they had been brought without the leave of the High Court: [2020] IECA 355. However, certain aspects require more detailed narration here.

2 The Applicants/Appellants (“ NWTAG”) have challenged a decision of An Bord Pleanála (“ ABP”) of 26 March 2019 which granted (subject to a number of conditions) planning permission for the construction of a windfarm consisting of up to 13 wind turbines with a tip height of up to 175 metres, together with associated works, in the townland of Coole and adjacent townlands in Co Westmeath (“ the Decision”). The development site consists of 440 hectares of peatland. Planning permission had previously been refused by Westmeath County Council but that decision was successfully appealed by the Second Notice Party ( “the Developer”).

3 The permission sought and granted relates only to the erection of the turbines and associated works. However, as the turbines require a grid connection, the environmental impact assessment report (EIAR) submitted by the Developer also addressed the environmental impacts of the proposed grid connection to the National Grid at Mullingar, approximately 25 kms away. 1 The EIRA identified mitigation measures relating to the overall development i.e. not limited to the turbine site and including the proposed grid connection. A Natura Impact Statement was also submitted by the Developer which, it appears, also assessed the overall development including the proposed grid connection. ABP proceeded to assess the environmental impacts of the proposed development, including the cumulative impacts of the windfarm and grid connection (the adequacy of that assessment is a significant issue in the proceedings but is not relevant to the resolution of these appeals).

4 Condition 4 of the Decision provides as follows:

“The mitigation measures and monitoring commitments identified in the Environmental Impact Assessment Report, and other plans and particulars, including the Natura impact statement, submitted with the planning application shall be implemented in full by the developer, except as may otherwise be required in order to comply with the following conditions.

Prior to the commencement of development, the developer shall submit to, and agree in writing with, the planning authority, a schedule of these mitigation measures and monitoring commitments, and details of a time schedule for implementation measures and associated monitoring”

Condition 5 should also be noticed. It provides that, prior to the commencement of the development, a detailed environmental management plan for the construction and operational stages is to be submitted to and agreed in writing with the planning authority “generally in accordance with the proposals set out in the [EIAR].”

5 In May 2019 NWTAG commenced judicial proceedings seeking certiorari of the Decision, as well as declarations to the effect that ABP failed to carry out an Environmental Impact Assessment (EIA) in accordance with Directive 2014/55/EU 2 and that the proposed development had not been considered and assessed in accordance with the requirements of Directive 92/43/EEC. 3 In addition to ABP, Ireland and the Attorney General were named as respondents.

6 NWTAG's Statement of Grounds set out no fewer than 44 separate grounds in support of those claimed reliefs. Inter alia, it was said that Condition 4 was ultra vires and bad in law, on a number of different bases, including that it purported to affect third party land outside the control of the Developer, in respect of which no consent had been obtained from the relevant landowners. On that basis, it was said that the condition was, on its face, ultra vires ABP. It was also said that the Condition 4 was impermissible on the basis that section 34(4) of the Planning and Development Act 2000 (as amended) (the “ PDA”) 4 expressly protects third party lands from any burden of the kind enshrined in the condition and on its face (so it was said) Condition 4 was “ fundamentally inconsistent” with section 34(4) and ultra vires, invalid and void (Statement of Grounds, para E28). Further issue was taken with the enforceability of the required mitigation measures and the consequences of their alleged unenforceability for the lawfulness of the environmental impact assessment and/or appropriate assessment that ABP was required to carry out in paras E35, E36 and E38.

7 Para E42 asserts that the provisions of Directive 2014/52/EU have not been properly transposed “ in circumstances where there is no provision whereby mitigation measures can be lawfully imposed on lands other than those provided for under Section 34(4) and where the Scheme of the Planning Act appears to contemplate a provision whereby part of a Scheme can be the subject matter of an application for planning permission and can require the imposition of conditions mitigating the adverse impacts of the development where no jurisdiction on the part of the competent authority to impose such conditions exists”. In those circumstances, it was said, Ireland has failed to transpose the EIA Directive “ as there is no appropriate or effective mechanism provided...