Peter Sweetman v an Bord Pleanála, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 16 June 2021
• Neutral Citation: [2021] IEHC 390
• Date: 16 June 2021
• Docket Number: [2020 No. 557 JR]
• Court: High Court

Between

Peter Sweetman

Applicant

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

Bord Na Móna Powergen Limited

Notice Party

[2021] IEHC 390

[2020 No. 557 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Detail – Applicant seeking certiorari of planning permission – Whether there was inadequate detail in respect of design

Facts: The applicant, Mr Sweetman, applied to the High Court challenging the legality of the grant of planning permission for a windfarm on a large site in County Longford. The applicant complained that the first respondent, An Bord Pleanála, was not entitled to rely on an unfinalised peat rehabilitation scheme, the draft plan was erroneously treated as finalised, the board failed to record the basis of disagreement with the inspector, Article 40.3 of the Constitution was not properly considered, the decision was contrary to reason and common sense, the board had regard to irrelevancies or failed to have regard to relevant matters, and there was inadequate detail in respect of design.

Held by Humphreys J that it is not in principle impermissible for an administrative decision-maker to apply a condition to a permission that the applicant will comply with steps carried out in a document that describes itself as a draft. Humphreys J construed the impugned decision as not being predicated on any fatal error of fact given that it was open to the interpretation that it should be read in the sense intended by the inspector. Humphreys J held that the relevant part of the board’s order set out reasons for the acceptance of certain aspects of the first inspector’s report, the reliance on certain provisions of the environmental impact assessment report and consideration of the further information received after the inspector’s report. Humphreys J held that the board (or any decision-maker) is not obliged to expressly refer to constitutional provisions merely because they are relied on by objectors (or other parties to the administrative process), as long as any points are considered in substance. Humphreys J held that it had not been established that the decision was irrational or that the board had regard to irrelevancies or failed to have regard to relevant matters in any sense that did not arise more specifically under one of the other headings. Humphreys J held that the Planning and Development Regulations 2001 as amended require plans and particulars and that is not compatible with a widely-variable-design application where the designs, dimensions or locations of structures are not specified in the application itself, either by reference to precise terms or to a reasonably limited range that could not in itself raise any reasonable planning objection.

Humphreys J held that there would be an order of certiorari of the impugned board decision.

Application granted.

JUDGMENT of Humphreys J. delivered on Wednesday the 16th day of June, 2021

1 The applicant challenges the legality of the grant of planning permission for a windfarm on a large site in County Longford, part of an overall bogland area of 1,908 hectares which is approximately 11 km by 5 km east to west. If constructed to the maximum dimension allowed by the permission, the turbines would be the joint tallest structures in Ireland, standing at 185 metres (higher than the Gherkin Tower in London, for comparison) and would equal the largest turbines for which permission has already been given (the largest actually constructed are 176 metres high). Even that record may be smashed in due course as other developers have plans for larger turbines to be erected at sea. The turbines are to be accompanied by a 110 Kv electrical substation and grid connection.

2 An additional superlative that was noted by counsel for the applicant is that the site includes extensive rail networks which are part of what he says is the biggest private railway in Europe. The railway is owned by the developer's parent entity, Bord Na Móna. The developer quantified the extent of the rail network as 570 km of permanent rail and 140 km of temporary rail across the State as a whole, although it isn't clear how much of that is on this particular site.

3 The site consists of three bog areas collectively known as Mountdillon Peat Production Bog Group, Lanesborough, County Longford. It predominantly consists of areas of drained bog land which has been the subject of industrial peat production (see para. 11 of affidavit of Gabriel Toolan). No application for substitute consent was made for the peat extraction on the site (para. 13). The evidence suggests that draining of the bogs commenced in the 1940s, but the court has been told that Bord Na Móna stopped all peat harvesting in 2019 and now says that such activity has been permanently stopped across the State. While Bord Na Móna says that the vast majority of peat removal was “lawful” in terms of domestic law, it is equally clear that much was contrary to European law due to the absence of compliance with the environmental impact assessment (EIA) directives 85/337/EEC and 2011/92/EU as amended by directive 2014/52/EU and the habitats directive 92/43/EEC, which requires appropriate assessment (AA).

4 On 9th May, 2000, a related company, Bord Na Móna Energy (not the notice party here) obtained a licence (number 0504) from the Environmental Protection Agency under s. 83(1) of the Environmental Protection Agency Act 1992 which purported to allow for the extraction of peat on the site, subject to fourteen conditions. Condition number 10 required an agreed bog rehabilitation plan to be submitted to the agency for agreement within eighteen months of the grant of the licence and which would have to be reviewed every two years. No such plan was ever agreed by the agency. The licence was last reviewed on 26th September, 2012 despite the fact that the legislation envisages significantly more regular reviews. The failure to carry out a review (or make any other decision) doesn't in itself preclude a challenge (see SPUC v. Grogan [1989] I.R. 753, J.N.E. v. Minister for Justice and Equality [2017] IEHC 96 at para. 10) but that challenge would have to take the form of mandamus or declaratory relief rather than certiorari.

5 The National Peatlands Strategy was published in 2015, and noted the changed understanding towards the exploitation of Irish bogs and the awareness of the need to protect these unique wetland habitats as well as to cherish them in a way that contributed to addressing the climate emergency.

6 The planning application for the development here was lodged directly with the board under the strategic infrastructure provisions of s. 37A of the Planning and Development Act 2000 on 31st January, 2019. As regards use of pre-existing infrastructure, the application states inter alia that “[s]urface water run-off from roads, crane pads and hardstanding areas to be collected by interceptor drainage network and dispersed across the cutaway peatlands to be assimilated into the existing drainage system within the boundary of the proposed development.”

7 The notice party prepared a Natura Impact Statement (NIS) including assessing potential effects on European sites, particularly Lough Ree Special Protection Area (SPA) (004064), Lough Ree Special Area of Conservation (SAC) (000440), Ballykenny-Fisherstown Bog SPA (004101) and River Shannon Callows SAC (000216) having regard to the sites' conservation objectives.

8 The Government's Climate Action Plan was published in June 2019 and recognised the need to develop and manage peatland as a carbon sink through the management restoration and rehabilitation of peatlands as set out in the National Peatlands Strategy 2015 to 2025.

9 An oral hearing was held commencing on 12th June, 2019. A first inspector's report was prepared in respect of the present application on 6th September, 2019 which recommended refusal of permission. It noted that the elected members of Longford County Council unanimously opposed the development. The reasoned conclusion identified two matters which the inspector considered could not be mitigated. The first was the impact on the landscape setting of Corlea Trackway Visitor Centre. The second was the impact of the development on climate due to the ongoing pumping of the peatland site, which would interfere with the extent to which the peatland would act as a carbon sink.

10 In September 2019, Simons J. gave judgment in Friends of the Irish Environment Ltd. v. Minister for Communications [2019] IEHC 646, ( [2019] 9 JIC 2002 Unreported, High Court, 20th September, 2019), declaring invalid statutory instruments which classified peat extraction as exempted development and subjected such extraction to licencing by the Environment Protection Agency. This gave rise to a cessation of peat harvesting by Bord na Móna across the State that was at first temporary and, as noted above, later made permanent.

11 In November 2019, the developer responded to a request for further information that was issued on foot of the first inspector's report, a procedure that is permitted in the strategic infrastructure context under s. 37F(1)(a) of the 2000 Act. The following features of the response are worth of note at this point.

12 The response says at p. 2 that the extent of the permanent footprint of the proposed windfarm project is 51.8 hectares of the overall application site area of 1908 hectares and refers to “the proposed use by the windfarm project of the existing drainage network within the overall site area.”

13 At p. 3 of the response it states that the “project will utilise the existing main drains and settlement ponds and does not require the use of the site/field drains”.

14 At p. 9 the response says that “[t]he proposed Rehabilitation Plans (Appendix A) are site specific and propose the most up to date and proven measures to rehabilitate the...