Roache and Another v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 21 May 2024
• Neutral Citation: [2024] IEHC 311
• Court: High Court
• Docket Number: [Record No.: 2019/327JR]

Between:

Frances Roache and Fred Roache

Applicants

and

An Bord Pleanála

First Named Respondent

and

Ireland and The Attorney General

Second Named Respondents

and

ABO Wind Limited

Notice Party

[2024] IEHC 311

[Record No.: 2019/327JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT OF Ms. Justice Siobhán Phelan, delivered on the 21st day of May, 2024.

INTRODUCTION

1 . In these proceedings the Applicants challenge the decision of An Bord Pleanála (hereinafter “the Board”) made on the 4 ^th of April, 2019 to grant permission for the development of a windfarm (hereinafter referred to as “the Ballymanus Wind Farm'”) comprised of 11 turbines and associated works at the townlands of Roddenagh, Killaduff, Ballymanus, Askakeagh, Ballinglen and Preban in County Wicklow.

2 . The grant of planning permission is challenged on a range of planning grounds but central to the Applicants' objection to the development is the alleged failure to properly assess the impact of the proposed development on drinking water supplied from a mountain spring to their farmhouse dwelling and land, coupled with its impact on the visual amenity of the area. A further issue is pursued in relation to turbine height and set back and an alleged failure to have regard to the terns of Circular PL05/2017.

GENERAL BACKGROUND

3 . The First Named Applicant died before these proceedings came on for hearing. The Second Named Applicant, her son and executor, is the fifth generation of the Roache family to farm their lands at Killaduff, Aughrim, County Wicklow. The lands were purchased by his great grandmother in 1917. Given her interest in the proceedings and her connection with the farm and land, I will continue to refer to the Applicants in the plural notwithstanding the intervening death of the First Named Applicant and the fact that the proceedings are now maintained by the Second Named Applicant alone.

4 . As reflected in their evidence of title since 1917 (notably, Folios WW677, WW3250 and WW1665 of the County of Wicklow), there is appurtenant to the Applicants' lands a right for the owner for the time being to take water for the use of the dwelling house and lands from nearby Roddenagh Wood. Lands at Roddenagh Wood are registered in the ownership of Coillte Teoranta (Folio 3250 for County Wicklow). The folio entry records that the land now registered in the ownership of Coillte Teoranta at Roddenagh Woods is subject to the rights of the owner of lands comprised in the Applicants' folios to take water for the use of the dwelling house and adjoining lands from its present source. Provision is also made for ongoing free access to the pipes, catchment basins, filters, cisterns or other parts connected with or required by such water supply at all reasonable times.

5 . The water supply to the Applicants' dwelling house and lands rises as a spring in Killaduff/Roddenagh Wood (hereinafter “the Killaduff Spring”) and travels downhill by gravity approximately 125 metres to a brick collection chamber from which it flows by gravity in a pipe to the dwelling house. The Applicants' dwelling house has never had any other source of drinking water and the property is not served by a well or any other source of water. The spring also serves a roadside water spout which is used as a drinking water source by the people of Aughrim. Of note, the public water supply in Aughrim has been contaminated and subject to “ boil water” notices on several occasions since 2015.

6 . These proceedings arise from the Notice Party's (hereinafter “the Developer”) second application for planning permission for a wind energy project in the south western foothills of the Wicklow Mountains to the west and south west of the town of Aughrim. The site of the proposed development is located in forest area (seemingly owned by Coillte Teoranta) along an elongated ridge between the Derry Water River and the Ow River. The site will require land clearance including tree felling and vegetation removal for the purpose of the development. The site area includes land in the townland of Ballymanus and also part of the Roddenagh Wood where the Killaduff Spring which supplies water to the Applicants' dwelling house and land originates.

7 . At the time of the second application for permission a windfarm comprising six turbines was under construction at Ballycumber to the west of the proposed site (hereinafter “the Ballycumber Wind Farm”).

PLANNING HISTORY

County Development Plan

8 . In its County Development Plan 2016–2022 (hereinafter “the CDP”) Wicklow County Council (hereinafter “the Authority”) recognises the need to reduce dependence on fossil fuels for energy generation and supports the development of renewable resources such as wind energy. The CDP also seeks to adequately take account of views and prospects which are listed in it (Objective NH52) and has adopted three landscape categorisations to differentiate between areas of outstanding natural beauty which are “ not favoured” for windfarm development, areas of high amenity which are “ less favoured” and other landscape categories which are “ most favoured”.

9 . The area proposed for development the subject of these proceedings is identified in the CDP as “ less favoured” for Wind Energy Development and is designated an area of high amenity. It is indicated that while wind farm development will be considered in this area, the sensitivities revealed would render exploitation more problematic and therefore less favoured for same. The prospect identified in these proceedings as most impacted by the proposed Ballymanus Wind Farm is listed Prospect 54 as set out in Chapter 10 of the CDP. This is a prospect across the Derry Rivers towards south Wicklow mountains viewed from R748 Holts Way at Coolalug, Mucklagh, Tomnaskela and Kilpipe. Part of the route also travels along the R747.

First Application for Planning Permission for Wind Farm

10 . A scheme was first submitted by the Developer for planning permission on the 23rd December, 2014 for twelve turbines (Wicklow County Council Planning Register Ref. 14/2198). This application was refused by the Authority on the 24th February 2015 for reasons that included visual impacts from two scenic designations as well as “ entry views to Aughrim Village”. Rather than appeal the decision to the Board, the Developer elected to revise the proposal.

Consultation Process

11 . Prior to the submission of the revised application for planning permission, the Developer engaged in public consultation including by public meetings at which a consultant hydrologist gave a Powerpoint presentation in relation to the impact of the proposed development on water supply (this presentation is reproduced at Appendix 2F of the EIAR). When providing an overview of water supply during this presentation, it was indicated that three turbines were proposed in the Killaduff source catchment area. A visual presentation of the Killaduff Water Supply Catchment was given on a slide depicting “ the catchment area” outlined in yellow.

12 . The size of area outlined in yellow on this map was identified as significant during the hearing before me as it is larger than the area subsequently identified as forming “the zone of contribution” to the Killaduff Spring in the EIAR. The area outlined in yellow shows the water supply catchment area as including not only turbines 2 and 3 but also turbine 4 and meteorological mast 1.

13 . The conclusions presented at the end of the Powerpoint presentation were that no impact on groundwater levels or flows were anticipated because of the proposed development and impacts on surface water were regarded as negligible during construction phase with no impacts anticipated during the operational phase.

Second Application for Permission for Windfarm

14 . In 2017, the Developer applied for the second time, this time for a ten-year permission for the development of a wind energy project comprising eleven instead of twelve wind turbines. It is this second application (Wicklow County Council Planning Register Ref. 17/814), which is the subject of these proceedings. The application was made on the 5 ^th of July, 2017.

15 . The proposed development as detailed in the second application consisted of:

• • eleven wind turbines with a maximum overall height of 150m to blade tip from existing ground level;

• • a transformer at each turbine;

• • a hard-stand area adjacent to each turbine location to facilitate the erection of turbines by crane;

• • a 38kV electrical substation and all associated infrastructure and works;

• • two meteorological masts with a maximum overall height of 100m tip from existing ground level and all associated infrastructure and works;

• • new site tracks and upgraded site tracks and all associated works;

• • two new access entrances to local road and all associated works;

• • underground cabling.

Environmental Impact Assessment Report [“EIAR”]

16 . The application was supported by an EIAR running to more than 900 pages including appendices and figures. The EIAR contains detailed consideration of a wide range of environmental issues involving input from a range of different expert consultants including Ecology, Ornithology, Geology, Hydrogeology and Slope Stability, Hydrology and Water Quality, Noise, Landscape and Visual, Cultural Heritage and Air & Climate. Due to the particular focus of these proceedings, it is proposed to consider the EIAR insofar as it addresses the impact on water, visual impact and turbine height as it relates to set back and Circular PL05/2017 only.

Impact on Water

17 . Hydro Environmental Services (including Michael Gill, Hydrogeologist, who has since sworn affidavits in these proceedings) (hereinafter “HES”) were retained as experts in relation to Geology, Hydrogeology and Slope Stability, Hydrology and Water Quality and are responsible for the information in Chapter 8 of the EIAR....