Power and Another v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice David Holland
• Judgment Date: 28 February 2024
• Neutral Citation: [2024] IEHC 108
• Docket Number: 2022/1016 JR

In the Matter of S.50 of the Planning and Development Act 2000, As Amended and S.3 of the Environmental (Miscellaneous Provisions) Act 2011, As Amended

Between:

Moya Power Wild Ireland Defence CLG

Applicants

and

An Bord Pleanála Minister for Housing, Local Government and Heritage Ireland and The Attorney General

Respondents

and

Knocknamona Windfarm Limited

Notice Party

[2024] IEHC 108

2022/1016 JR

THE HIGH COURT

PLANNING & ENVIRONMENT

JUDICIAL REVIEW

JUDGMENT OF Mr Justice David Holland, DELIVERED 28 February 2024.

Contents

INTRODUCTION	3
Reliefs Sought	6
Chronology	6
MATTERS NO LONGER IN ISSUE	19
GROUND 2 (PUBLIC PARTICIPATION)	20
GROUND 1 (EIA)	21
G1 — EIA — The Central Facts	21
G1 — EIA — The Inspector's Report, the 2021 EIAR, the 2020 Nose Assessment, the MAS Environmental Report & the Malachy Walsh Reply.	21
G1 — EIA — The Pleadings	33
G1 — EIA — Article 4(2), Annex II §13(a) & Annex II §4(i) of the EIA Directive	35
FitzPatrick 2019 & Bund Naturschutz 1994	39
Commission v Spain 2004	41
Bund Naturschutz 2016	44
Save Cork City 2021	44
Commission Guidance on EIA — Change & Extension — 2021	45
G1 — EIA — The Applicants' Replacement Theory	46
Quantum of Power Output Increase — 1	47
Martin 2022	48
Wells 2004	49
Commission v Germany 1995 & the Power Output Point.	51
Quantum of Power Output Increase — 2	52
Salzburger Flughafen 2013 & Abraham 2008	54
Commission v Ireland (Derrybrien Windfarm) 2008	55
G1 — EIA — Alleged Inadequacy of Cumulative Assessment and of Multiple Planning Permission and EIA Processes	55
Coyne 2023	57
South-West Regional Shopping Centre 2016	61
Conclusion as to Cumulative Assessment	63
G1 — EIA — Use of 2014 Noise Baseline Defective	63
G1 — EIA — Modelling Rather than Measuring the Woodhouse Windfarm Noise	66
G1 — EIA — The “Open-Ended” Argument	67
G1 — EIA — The Duration Point	68
G1 — EIA — The Screening Point	68
G1 — EIA — Conclusion	68
GROUNDS 5 & 6 (AA — NO CONSERVATION OBJECTIVES)	70
G5&6 — AA — Introduction, Integrity of Sites & Conservation Objectives	71
G5&6 — AA in the Impugned Decision	78
G5&6 — AA — Discussion and Decision	81
CONCLUSION	86
Appendix The Blackwater Callows SPC Conservation Objectives, 26 January 2022.	87

INTRODUCTION

1 The Applicants challenge a decision of the First Respondent (“the Board”), dated 28 September 2022 and made pursuant to the Planning and Development Act 2000 as amended 1 (“the Impugned Decision”), to grant planning permission (“the Impugned Permission”) to the Notice Party, Knocknamona Windfarm Limited (“KWFL”), for amendments (“the Proposed Development”) to the permitted (in 2016) but as yet unbuilt, Knocknamona Windfarm, consisting of 8 turbines, on a site (“the Site”/“the Knocknamona Windfarm Site”), at present consisting mostly of commercial forestry, about 9km southwest of Dungarvan, and 3km east of Aglish, Co. Waterford. 2 Those amendments – the Proposed Development – consist only 3 of,

• • An increase in the uppermost tip height of the previously authorised turbines from up to 126 metres to up to 155 metres.

• • Amendment of the height and design of the previously authorised meteorological mast from a tubular tower mast up to 80 metres to a lattice tower mast up to 99 metres.

2 Only the tip height increase is controversial. As I understand, the uppermost tip height is the highest point above ground reached by the tip of a rotor in the vertical position. Thus, tip height is composed of two elements – hub height above ground and rotor length. The hub is the central axle around which the rotors spin. 4

3 The practical reason for KWFL's application for the Impugned Permission is that, whereas ESB Networks has approved a Maximum Export Capacity 5 of 34MW for the Knocknamona Windfarm, KWFL take the view that the Board by the 2016 Permission, in reducing the number of turbines from the 12 sought to 8, had reduced Knocknamona Windfarm's power output by 33% to 23MW. By the increased tip height permitted by the Impugned Permission, KWFL considers that it can increase the power output by about 11MW to the 34MW for which it has ESB Networks approval. KWFL asserts that, as the windfarm is already permitted and the Proposed Development will increase its GHG 6 emission offset potential by 43%, and so contribute to efforts on climate change and protection of biodiversity, the Proposed Development represents sustainable development. 7

4 As to sustainable development, one may add that national policy generally favouring onshore wind energy as a major element in the move from fossil fuel to renewable energy generation and in the reduction of the GHG 8 emissions of power generation by way of addressing climate change is well-established and is briefly described in the Board's Inspector's report. 9 It is recorded also in the 2021 EIAR 10 to the conclusion that, by the Proposed Development, there will be a significant positive change to the impacts on climate through the avoidance of emissions from fossil fuel generation. One may, of course, dispute how significant that 11MW will be in the great scheme of things and sustainability is certainly not concerned only with climate change – it also requires respect for the health and welfare of local residents. But that wind power represents sustainable development, at least as to the discrete issue of GHG emissions reduction, is clearly national policy to which the Board must have regard.

5 The Board,

• • decided to grant permission for Proposed Development – generally in accordance with its Inspector's recommendation. 11

• • to comply with the EIA Directive 12 as transposed to Irish law, did an Environmental Impact Assessment (“EIA”) of the Proposed Development. For that purpose it,

  • ○ identified the “project” to be subjected to EIA as specifically the amendments described above (as opposed to the entire Knocknamona Windfarm).

  • ○ adopted the Inspector's report as to EIA.

  • ○ concluded that the environmental effects of the Proposed Development, by itself and in combination with other projects, would be acceptable. Those other projects included the Woodhouse Windfarm and the proposed Grid Connection from Knocknamona Windfarm to the Woodhouse Windfarm 110kV electricity substation.

• • to comply with the Habitats Directive 13 as transposed to Irish law and having “screened in” 5 European Sites, did an Appropriate Assessment (“AA”) of the implications of the Proposed Development for, inter alia, the Blackwater Callows Special Protection Area 14 (the “SPA”). It adopted the Inspector's report in that regard and concluded that there was no reasonable scientific doubt but that the Proposed Development would not adversely affect the integrity of European sites. 15

6 The Knocknamona Windfarm Site adjoins 16 and lies generally south-west of the existing Woodhouse Windfarm and its 110kV electricity substation – to which substation (the “Woodhouse Substation”), KWFL intend the Knocknamona Windfarm will be connected. KWFL and the Board 17 say that the Woodhouse and Knocknamona Windfarms are separate projects by different developers. The Applicants assert a relationship between the developers and the lands. It is not apparent that anything turns on this dispute for present purposes.

7 Moya Power, the First Applicant (“Ms Power”) lives north/north-east of and near to the Woodhouse Windfarm and substation. The Knocknamona Windfarm Site lies further from the Power family home and generally south and southeast of the Woodhouse Windfarm. Ms Power's home lies greater than 1km but less than 2km from the nearest proposed Knocknamona Windfarm turbine. To some extent, the Woodhouse Windfarm lies between the Power family home and the Knocknamona Windfarm Site. Ms Power did not object to the Woodhouse Windfarm planning application as, she says, she was assured it would not affect her home or family. She says that, as matters turned out, the impacts of the Woodhouse Windfarm on her home and family have been intolerable by way of noise, shadow flicker and

visual impact. Whether that is so is not for decision in these proceedings. She is one of the applicants in two separate proceedings:

Wild Ireland Defence, the Second Applicant, is a non-governmental organisation established in 2019 to promote environmental protection. Since its establishment, it has engaged in planning processes in the interest of environmental protection. Ms Power and Wild Ireland Defence participated in the appeals to the Board which resulted in the Impugned Decision.

• • “S.160 proceedings” 18 complaining of noise and other nuisance by the operation of the Woodhouse Windfarm and seeking injunctive relief in respect thereof.

• • Judicial review proceedings in which the planning permission for a grid connection between Knocknamona Windfarm and the Woodhouse Substation was recently quashed.

Reliefs Sought

8 The Applicants seek the following reliefs:

• • Certiorari quashing the Impugned Decision.

• • A declaration that the Second, Third and/or and Fourth Respondents (“the State”) have failed to fulfil their obligations under Articles 3, 4(1) and 4(2) of the Birds Directive 19 and Article 6 of the Habitats Directive, as implemented by the Habitats Regulations 2011 20 – in particular Article 26 thereof – by failing to establish the necessary site-specific conservation objectives and conservation measures for the Blackwater Callows SPA, corresponding to its qualifying interests. 21

• • Mandamus requiring the establishment of such site-specific conservation objectives and conservation measures.

Chronology

9 A chronology of some of the background to these proceedings will assist:

Date	Event	Comments 22
2004	WCCC 23 granted planning permission...