People Over Wind and Another v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Haughton
• Judgment Date: 01 May 2015
• Neutral Citation: [2015] IEHC 271
• Court: High Court
• Date: 01 May 2015

People Over Wind & Environmental Action Alliance Irl v Bord Pleanala & Ors

COMMERCIAL

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)

BETWEEN

PEOPLE OVER WIND, ENVIRONMENTAL ACTION ALLIANCE IRELAND

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

LAOIS COUNTY COUNCIL, COILLTE TEORANTA AND THE DEPARTEMENT OF ARTS, HERITAGE AND THE GAELTACHT

NOTICE PARTIES

[2015] IEHC 271

[487 JR/2014]

THE HIGH COURT

Environment – Order of certiorari – Planning and Development Act 2000 – Planning permission – Environmental Impact Assessment.

Facts: The applicant sought for an order of certiorari quashing the decision of the respondent granting permission for a development of an 18-turbine wind farm. The applicant questioned the adequacy of the Environmental Impact Statement. The applicant alleged that there was failure to properly record a determination and to carry out a Proper Appropriate Assessment.

Mr. Justice Haughton held that the application for an order of certiorari quashing the decision of the respondent granting permission for a development of an 18-turbine wind farm would be denied and therefore, accordingly the application would be dismissed. The Court held that the there was no significant lacunae and there was no failure to properly record a determination and to carry out a Proper Appropriate Assessment on the part of the respondent. The Court held that the law required the satisfaction of the decision maker. The Court held that the respondent had ample evidence before it and it reasonably concluded that the proposed development had not adversely affected any integrity.

1 JUDGMENT of Mr. Justice Haughton delivered the 1st day of May, 2015

Index	Paragraphs
Introduction	1 - 6
Order Granting Leave	7 - 10
Scope of Judicial Review - Grid Connection	11 - 52
- Decision of the Court	53 - 60
Ground (3) - Adequacy of the Environmental Impact Statement	61 - 97
- Decision of the Court	98 - 101
Recording and Adequacy of the Environmental Impact Assessment	102 - 105
- Did the Board carry out an Environmental Impact Assessment 106 - 112	- Decision on whether the Board carried out an Environmental
- Impact Assessment	113 - 117
- Visual Impact	118 - 125
- Noise Impact	126 - 133
- Shadow Flicker	134 - 137
- Haul Routes	138 - 146
Failure to Properly Record Determination	147 - 154
Failure to Carry out a Proper Appropriate Assessment	155
- Legislative Background	156 - 161
- Background Facts Relating to Appropriate Assessment	162 - 194
- The Board's Decision on Appropriate Assessment	195 - 199
- The Applicants' Submissions	200 - 204
- Dr. Moorkens and the Best Scientific Evidence	205 - 213
- Submissions of the Respondent and Coillte	214 - 221
- Discussion	222 - 257
- Decision of the Court	258 - 267
Ground (6) - Contravention of Development Plan	268 - 272
Other Grounds	273 - 277
Conclusion	278

Introduction

2 1. In this application for judicial review the applicants seek an order of certiorari quashing the decision, dated 13 ^th June, 2014, of the respondent, An Bord Pleanala ("the Board" or "the respondent") to grant permission to the second named Notice Party ("Coillte") in respect of the proposed development of an 18 turbine wind farm at Cullenagh, County Laois.

3 2. The first named applicant is a committee comprising representatives of some 70 concerned households in the area of the proposed development and it made observations/submissions in respect of the initial application for permission to Laois County Council and in respect of the appeal from the planning authority's decision to the respondent.

4 3. The second named applicant is a non-governmental environmental organisation established for the purposes of protecting the environment at Ballyroan, Co. Laois and the surrounding townlands. The second named applicant also objected to the planning application and made submissions/observations at the appeal stage.

5 4. The factual background is as follows. Coillte applied for planning permission for a development of an 18 turbine windfarm near Cullenagh, Co. Laois on 9 ^th August, 2013 which was accompanied by an Environmental Impact Statement ("EIS") and a Natura Impact Statement ("NIS"). The proposed development included inter alia construction of a permanent meteorological mast, a single story 38kv substation with sanitary facilities and parking spaces, underground cabling and strengthening and widening of roads to be used during the construction and operation phases of the development. Members of the public, including the applicants and a number of public bodies and persons made submissions in relation to the application. On 1 ^st October, 2013, officials of a number of departments of Laois County Council also submitted reports on the application.

6 5. On 2 ^nd October, 2013, Laois County Council planning authority refused permission for the development on the basis that appropriate or adequate consideration had not been given to the effects of the development on the environment in the EIS or the NIS. The reasons for refusal are considered more fully below. Coillte then appealed the decision to the Board. Further information was provided to the Board by Coillte in relation to the development following the application. Ms. Joanne Kelly was appointed inspector and was tasked with producing a report on the proposed development which was completed on 11 ^th February, 2014. The Board, after examining the information before it granted permission for the development on 13 ^th June, 2014. The applicants later applied to the Court for judicial review of the Board's decision.

7 6. These proceedings were heard on affidavit in the Commercial Court.

Order Granting Leave

8 7. By order of Ms. Justice Baker made on 31 ^st July, 2014, leave was granted on grounds (2)-(14) to seek an order of certiorari quashing the Board's decision granting permission for the proposed development along with any such further orders as the Court deems meet and the costs of the application for judicial review.

9 8. For completeness, grounds (1)-(14), delineated in para. (E) of the Statement Required to Ground an Application for Judicial Review, are outlined below:-

10 2 "(1) The respondent failed to carry out a proper environmental impact assessment (EIA) as required under national and European Law.

11 (2) The respondent failed to carry out a proper appropriate assessment (AA) as required under National and European Law.

12 (3) The respondent had before it an environmental impact statement (EIS) that was inadequate in that it failed to properly describe the proposed development and its effects and contained material that was inaccurate and incorrect. Accordingly no or no lawful EIA was or could have been conducted.

13 (4) The respondent had before it a natura impact statement (NIS) that was inadequate as it did not properly describe the proposed development or its effects on nearby European Sites. The planning authority and the notice party (the Department of Arts, Heritage and the Gaeltacht) identified significant lacunae in the information provided by the notice party developer, Coillte Teoranta. These lacunae were never satisfactorily addressed. Accordingly no, or no lawful AA was or could have been conducted.

14 (5) The respondent failed to properly record its determination and failed to give any or any proper reasons for its determination contrary to National and European Law.

15 (6) The respondent failed to have regard for the decision to refuse permission for the development by Laois County Council. The Council found that the proposed development would contravene development objective NH13/001 of the Laois County Development Plan 2011-2017 pursuant to s.37(2) of the Planning and Development Act 2000 the Board may only grant planning permission where permission has been refused by reason of material contravention of a development plan in specified limited circumstances. The Board had no regard to this section or its applicability to the decision of the planning authority. The said decision is ultra vires, void and of no legal effect.

16 (7) The applicant herein raised a request for information pursuant to the European Communities (Access to Information on the Environment) Regulations 2007 requesting a copy of the record of the environmental impact assessment and appropriate assessment carried out. The applicant received a response on 18 ^th July 2014. This response stated that the EIA and AA conducted comprised all of the documents received during the course of the appeal. The respondent was unable to furnish, or direct the applicant to, any particular record of the assessment. This is contrary to the requirements of European Law.

17 (8) The respondent has nowhere produced an assessment of the development for the purposes of the EIA and Habitats Directive. The record in the Board's direction and decision is perfunctory and uninformative. It gives no proper account of the assessment undertaken. In particular, it fails entirely to engage with the decision of the planning authority. It also fails to engage with the recommendations and concerns of the officers of the planning authority and the Department of Arts Heritage and the Gaeltacht in the course of the consideration of the planning application and the identified deficiencies in respect of the information provided by the applicant for permission. These concerns were expressed again in the context of the appeal and were echoed by the applicants and the public concerned. The decision is contrary to law.

18 (9) The Board failed to require the submission of a proper revised EIS and...