People Over Wind & Environmental Action Alliance Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 20 November 2015
• Neutral Citation: [2015] IECA 272
• Court: Court of Appeal (Ireland)
• Date: 20 November 2015

People Over Wind & Environmental Action Alliance Ireland

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

BETWEEN/

PEOPLE OVER WIND, ENVIRONMENTAL ACTION ALLIANCE IRELAND

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

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

NOTICE PARTIES

[2015] IECA 272

Ryan P.

Hogan J.

Edwards J.

Appeal No. 385/2015

THE COURT OF APPEAL

Planning permission – Construction – Judicial review – Applicant seeking to challenge the validity of a decision of the respondent – Whether the respondent was obliged to procure the best scientific evidence in carrying out an appropriate assessment

Facts: The applicant, People Over Wind, Environmental Action Alliance Ireland, challenged the validity of a decision of the respondent, An Bord Pleanála (the Board), dated 14th June 2014. By that decision the Board granted the notice party, Coillte Teoranta, planning permission to construct and develop a wind farm at Cullenagh, Co. Laois, permission having been originally refused by the planning authority. The planning permission extended to the erection of 18 wind turbines. The decision also gave permission for the construction of new internal forestry roads, the strengthening of existing roads and the construction of a sub-station along with car parking spaces. In the High Court the applicant pursued a wide ranging challenge to the validity of the permission, but these objections were dismissed on 1st May 2015. The High Court subsequently delivered a further reserved judgment on 19th June 2015 certifying pursuant to s. 50A(7) of the Planning and Development Act, 2000 three points of law of exceptional public importance relating to the application of the Habitats Directive 1992 (92/43/EEC): 1) Do Part XAB of the 2000 Act and/or Article 6(3) of the Habitats Directive impose an obligation on the Board in conducting an appropriate assessment to ensure that the proposed development would not adversely affect a National Parks and Wildlife Service objective of restoration, from unfavourable to favourable conservation status, of a protected habitat and species in a candidate Special Area of Consideration situated outside the proposed development site?; 2) (a) What obligation (if any) is on the Board, to seek or procure the best scientific evidence in carrying out an appropriate assessment? (b) In light of the scientific evidence that was before the Board with regard to the Nore Freshwater Pearl Mussel, in carrying out its appropriate assessment was the Board entitled to regard this as the best scientific evidence for the purposes of deciding the appeal? (c) In reviewing the decision of the Board in respect of appropriate assessment was the Court constrained only to consider matters that were before the Board or was it entitled or obliged to have regard to the new or additional evidence in the affidavit of Dr Moorkens sworn on 23rd January, 2015 with regard to the Nore Freshwater Pearl Mussel? (d) If so, does this evidence demonstrate a lacuna in the best scientific evidence put before the Board such that its decision should be quashed or emitted for further consideration?; 3) Where a proposed development may adversely affect the integrity of a European Site but such effect may be avoided by mitigation measures to what extent, if at all, is it lawful for the detail of such measures to be left over by the Board for post consent agreement between the developer and named authorities? The certified questions were considered by the Court of Appeal.

Held by Hogan J that it was sufficient that the applicant for permission demonstrated that the proposed development would pose no threat to the integrity of the Special Areas of Conservation (SAC). Hogan J held that in light of Case C-127/02 Waddenzee [2004] ECR I-7448, the obligation which is placed on the Board is to have access to the best scientific knowledge which is reasonably available. Hogan J held that there was no suggestion at all that the Board did not have available to it the best scientific knowledge. Further, Hogan J noted that the Board identified the precise hazard posed by the development and imposed a stringent standard on the developer in order to ensure that no such contaminated run-off entered the watercourses. Hogan J held that it was clear that the admissibility of Dr Moorkens” affidavit does not affect the validity of the Board”s decision. Hogan J held that the Board identified the area of vulnerability of the protected species in the SAC and took appropriate measures to ensure that no risk was posed as a result of the development. Hogan J held that the delegation of the finalisation of conditions to the planning authority was within the scope of delegation envisaged in Boland v An Bord Pleanála [1996] 3 IR 435 and was not unlawful.

Hogan J held that as all three certified questions were resolved adversely to the applicant and as the Court had concluded that there was no necessity for a reference to the Court of Justice pursuant to Article 267 TFEU, it followed that the appeal be dismissed.

Appeal dismissed.

1 1. The applicant is an environmental non-governmental organisation which in these judicial review proceedings has challenged the validity of a decision of An Bord Pleanála ("the Board") dated 14 ^th June 2014. By that decision the Board granted the notice party, Coillte Teo., planning permission to construct and develop a wind farm at Cullenagh, Co. Laois, permission having been originally refused by the planning authority. The planning permission thus granted extends to the erection of 18 wind turbines (each of which will have a rotor diameter of up to 93m and an overall tip height of up to 131m.). The decision also gave permission for the construction of new internal forestry roads, the strengthening of existing roads and the construction of a sub-station along with car parking spaces.

2 2. In the High Court the applicant pursued a wide ranging challenge to the validity of the permission, but these objections were dismissed by Haughton J. in a careful judgment of exceptional thoroughness and lucidity delivered on 1 ^st May 2015: see People over Wind, Environmental Action Alliance Ireland v. An Bord Pleanála [2015] IEHC 271. Haughton J. subsequently delivered a further reserved judgment on 19 ^th June 2015 certifying pursuant to s. 50A(7) of the Planning and Development Act, 2000 (as amended) three points of law of exceptional public importance: see [2015] IEHC 393.The three points of law which were certified by Haughton J. all relate to the application of the Habitats Directive 1992 (92/43/EEC).

3 3. The obligations imposed by Article 6 of the Habitats Directive were transposed into domestic law by Part XAB of the Planning and Development Act 2000 (as amended)("the 2000 Act"). Article 6 so far as material provides:

2 "2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

3 Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.

4 If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted."

4 4. While, as might be expected, the domestic transposing legislation is more detailed and specific that the Directive, the essence and the object of the 2000 Act is the same. Part XAB of the 2000 Act applies to any European site, which term includes for this purpose Special Areas of Conservation ("SAC"). Section 177S of the 2000 Act imposes a positive obligation on all "competent authorities" to take:

"appropriate steps to avoid in a European site the deterioration of natural habitats and the habitats of species as well as the disturbance of the species for which the site has been designated, insofar as such disturbance could be significant in relation to the objects of the Habitats Directive."

5 5. The term "competent authorities" refers in this context to the planning authority (in this instance, Laois County Council) and, on appeal, the Board. It is not disputed for present purposes that s. 177S of the 2000 Act imposes a jurisdictional obligation on the Board. It follows, therefore, that the Board cannot legally grant permission for a development which, viewed objectively, would contravene the requirements of this section: see, e.g., the judgment of Finlay Geoghegan J. in Kelly v. An Bord Pleanála [2014] IEHC 400.

6 6. While the lands which were the subject of the planning application are currently in forestry use, they are situated some 12km to 17km distant from the River Nore...