Pol O Grianna and Others v Framore Ltd
| Jurisdiction | Ireland |
| Judge | MR JUSTICE MICHAEL PEART |
| Judgment Date | 12 December 2014 |
| Neutral Citation | [2014] IEHC 632 |
| Court | High Court |
| Date | 12 December 2014 |
BETWEEN:
AND
AND
AND
[2014] IEHC 632
THE HIGH COURT
Planning Permission ? Conditions - Environmental Impact Statement - Order of Certiorari ? Failure to follow procedures ? Flawed Assessment - Assessment of Proper Planning and Sustainable Development
Facts: In the case under consideration the applicants lived close to an area where the second named notice party were proposing to erect six wind turbines and associated buildings and infrastructure for which it had obtained planning permission from An Bord Pleanala (the Board) subject to conditions in November 2013. In their Abridged Statement of Grounds the applicants sough an order of certiorari and a declaration that in making its decision the respondent failed to carry out a proper Environmental Impact Statement (EIS) in accordance with the provisions of Section 172 of the Planning and Development Act, 2000, as interpreted in accordance with the obligations imposed by Article 3 of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment.
Held by Justice Peart in light of the available evidence and submissions presented that he would grant the reliefs sought. In respects of the failure to comply with obligations in relation to the Environmental Impact Assessment, it was reasoned that there was no evidence to support the contention made that the Board erred in relation to its assessment and even though the inspector?s report was generally adopted by the Board, it was entirely insufficient to indicate the sort of fundamental error on the part of the Board which should result in the Board?s decision being quashed, when all the material was taken into account. Turing to the submission that the Board had failed to have regard to the 2006 Guidelines, the Court was of the opinion that the Board in had failed in its statutory duty by not slavishly adhering to the Guidelines recommendation in relation to a low noise environment. It was similarly reasoned that the Board?s decision did not depart in any material or significant way from the Guidelines. Finally, in addressing the issue of project-splitting, the Court concluded that in reality the wind farm and its connection to the national grid was one project, neither being independent of the other. As there had not been any assessment of the potential environmental impact of that second phase of the wind farm development it was reasoned that it would be difficult to see any real prejudice to the developer by having to wait until the necessary proposals were finalised by ESB Networks so that an EIS for the entire project could be completed and submitted, and so that a cumulative assessment of the likely impact on the environment could be carried out in order to comply with both the letter and spirit of the Directive.
PLANNING & DEVELOPMENT ACT 2000 S172(1)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 PART 2 SCHED 5
PLANNING & DEVELOPMENT ACT 2000 S172
EEC DIR 92/2011 ART 3
PLANNING & DEVELOPMENT ACT 2000 S171A(1)
PLANNING & DEVELOPMENT ACT 2000 S172(1G)
PLANNING & DEVELOPMENT ACT 2000 S172(1J)
PLANNING & DEVELOPMENT ACT 2000 S171A
PLANNING & DEVELOPMENT ACT 2000 S28(1)
PLANNING & DEVELOPMENT ACT 2000 S28(2)
PLANNING & DEVELOPMENT ACT 2000 S28
MCEVOY & SMITH v MEATH CO COUNCIL 2003 1 IR 208 2003 1 ILRM 431 2002/20/4983 2003 IEHC 31
PLANNING & DEVELOPMENT ACT 2000 S27
PLANNING & DEVELOPMENT ACT 2000 S34(10)(B)
PLANNING & DEVELOPMENT ACT 2000 S37(2)(C)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 PART 1 SCHED 2
PLANNING & DEVELOPMENT ACT 2000 S4
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 PART X
SKYE WINDFARM ACTION GROUP LTD v HIGHLAND COUNCIL 2008 CSOH 19
BUND NATURSCHUTZ IN BAYERN EV v FREISTAAT BAYERN 1994 ECR I-3717 (CASE C-396/92)
R (ON THE APPLICATION OF LITTLEWOOD) v BASSETLAW DC 2008 EWHC 1812 (ADMIN) 2009 ENV LR 21 2009 JPL 478
ARKLOW HOLIDAYS LTD v BORD PLEANALA & ORS 2007 1 ILRM 125 2006/3/413 2006 IEHC 15
The applicants all live close to an area in County Cork where Framore Limited, the second named notice party are proposing to erect 6 wind turbines and associated buildings and infrastructure for which it obtained a planning permission from An Bord Pleanala ("the Board") subject to 17 conditions on the 14 November 2013.
Cork County Council ("the Council") had previously decided to grant permission on 18 th June 2013 subject to 28 conditions. The applicants, who had lodged observations with Cork County Council outlining their concerns regarding noise and visual impact in July 2012, appealed that grant of permission to An Bord Pleanala, which on the 14 th November 2013 made a decision to grant permission for the development subject to a number of conditions.
This application for planning permission is one which had to be accompanied by an Environmental Impact Statement ("EIS"), since the Board was required to carry out an Environmental Impact Assessment ("EIA") under to the provisions of section 172(1) of the Planning and Development Act, 2000, as amended ("the Act of 2000"), the development being one which fell within the scope of Part 2, Schedule 5 of the Planning and Development Regulations 2001, as amended.
In their 'Abridged Statement of Grounds' dated 14 th February 2014 the applicants seek a Declaration that in making its decision the respondent failed to carry out a proper EIA in accordance with the provisions of Section 172 of the Planning and Development Act, 2000, as amended ("the Act of 2000"), as interpreted in accordance with the obligations imposed by Article 3 of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment. A number of different complaints are made, but, essentially, all (except that related to 'project-splitting') are directed towards establishing that the EIA stated by the Board to have been carried out is a flawed assessment which is not in accordance with its obligations under the Act.
Section 171 A(1) defines "environmental impact assessment" as "an assessment, which includes an examination, analysis and evaluation, carried out by a planning authority or the Board, as the case may be, in accordance with this Part and regulations made thereunder, that shall identify, describe and assess in an appropriate manner, in the lisht of each individual case and in accordance with Articles 4 to 11 of the Environmental Impact Assessment Directive, the direct and indirect effects of a proposed development on the following: (a) human beings, flora and fauna, (b) soil, water, air, climate and the landscape, (c) material assets and the cultural heritage, and (d) the interaction between the factors mentioned in paragraphs (a), (b) and (c)"(emphasis added). The applicants place considerable emphasis on the words " in the light of each individual case".
Section 172 contains a number of subsections dealing with the requirement that certain applicants must provide an EIA to the planning authority or the Board, as the case may be, and that either of the latter may seek further information from an applicant. Of some relevance to the present application is what is provided for in subsections (1G) to (1J) of section 172 which provide as follows:
2 "(1G) in carrying out an environmental impact assessment under this section the planning authority or the Board, as the case may be, shall consider - (a) the environmental impact statement; (b) any further information furnished to the planning authority for the Board pursuant to subsections (1D) or (1E); (c) any submissions observations validly made in relation to the environmental effects of the proposed development; (d) the views, if any, provided by any other Member State under section 174 or Regulations made under that section.
3 (1H) in carrying out an environmental impact assessment under this section the planning authority or the Board, as the case may be, may have regard to and adopt in whole or in part any reports prepared by its officials or by consultants, experts or other advisers.
4 (1I) where the planning authority or the Board, as the case may be, decides to grant consent for the proposed development, it may attach such conditions to the ground as it considers necessary, to avoid, reduce and, if possible, offset the major adverse effects on the environment (if any) of the proposed development.
5 (1J) when the planning authority or the Board, as the case may be, has decided whether to grant or to refuse consent for the proposed development, it shall inform the applicant for consent and the public of the decision and shall make the following information available to the applicant for consent and the public: (a) the content of the decision and any conditions attached thereto; (b) the evaluation of the direct and indirect effects of the proposed development on the matters set out in section hundred and 171 A; (c) having examined any submission or observations validly made (i) the main reasons and considerations on which the decision is based, and (ii) the main reasons and considerations for the attachment of any conditions, including reasons and considerations arising from or related to submissions observations made by a member of the public; (d) where relevant, a description of the main measures to avoid,...
To continue reading
Request your trial
-
Daly v Kilronan Windfarm Ltd
...20 The present case involves a consideration in some detail of the judgment of Peart J. in O'Grianna & Ors. v. An Bord Pleanála [2014] IEHC 632. Peart J. was giving judgment in an application for judicial review of a decision of Cork County Council, affirmed with variation by An Bord Plean......
-
Gerard Doorly v Ciara Corrigan and Padraig Corrigan
...paras. 57 to 62 of her judgment: “57. The respondents argue that the judgment of Peart J. in Ó Grianna & Ors. v. An Bord Pleanála [2014] IEHC 632] is not on point. Planning permission exists in the present case for the turbine development, and is now exempt from challenge. The decision in Ó......
-
McCormack v McCormack
...... 152 Second, Mr Hutch had underestimated some liabilities and entirely omitted others, in subtracting only bank debt and the McCormacks' loan from the property valuation he had posited. ......
-
North East Pylon Pressure Campaign Ltd v an Bord Plean?la
...not being applied for. In this regard, the court was referred to the decision of the High Court in O'Grianna & ors v. An Bord Plean�la [2014] IEHC 632. There, Peart J. found that connection of a proposed wind farm to the national grid was an integral part of an overall development of which ......
-
Planning Issues In Energy Projects Relying On Section 5 Declarations
...O'Grianna & Ors. v An Bord Pleanála [2014] IEHC 632 23, the High Court held that a project could not, for planning purposes, lawfully be split into two independent parts - the wind farm and the grid connection. The Kilronan case, Daly v Kilronan Windfarm Ltd [2017] IEHC 308, raised a di......