Sliabh Luachra Against Ballydesmond Windfarm Committee v an Bord Pleanála

JurisdictionIreland
JudgeMr. Justice Denis McDonald
Judgment Date20 December 2019
Neutral Citation[2019] IEHC 888
Docket Number[2019 No. 63 J.R.]
CourtHigh Court
Date20 December 2019
BETWEEN
SLIABH LUACHRA AGAINST BALLYDESMOND WINDFARM COMMITTEE
APPLICANT
AND
AN BORD PLEANÁLA
RESPONDENT
AND
SILVERBIRCH RENEWABLES LIMITED

AND

KERRY COUNTY COUNCIL
NOTICE PARTIES

[2019] IEHC 888

Denis McDonald

[2019 No. 63 J.R.]

THE HIGH COURT

COMMERCIAL

Planning permission – Environmental Impact Assessment – Appropriate Assessment – Applicant seeking to challenge a decision of the respondent granting planning permission – Whether there was a failure to carry out and record any Appropriate Assessment in accordance with national and European law

Facts: The applicant, Sliabh Luachra Against Ballydesmond Windfarm Committee, applied to the High Court seeking to challenge a decision of the respondent, An Bord Pleanála, dated 27th November, 2018 granting planning permission for the construction of a windfarm and associated works on elevated ground between the villages of Gneeveguilla, County Kerry and Ballydesmond, County Cork, on the following grounds: (a) there was a failure to carry out and record any Appropriate Assessment in accordance with national and European law; (b) there was nothing to suggest that the respondent carried out an Environmental Impact Assessment (EIA); (c) the respondent contravened s. 37 (2) of the Planning and Development Act 2000 in circumstances where the proposed development materially contravened the Kerry County Development Plan.

Held by McDonald J that the report of the inspector did not offer complete, precise and definitive findings and conclusions regarding the potential effects on the site. As a consequence, it seemed to McDonald J to follow that the planning authority was unable to determine that no reasonable scientific doubt remained as to the absence of the identified potential effects, on the basis of the material contained in the inspector’s report. McDonald J held that the decision of the respondent must be quashed on that ground. He also held that the decision of the respondent must be quashed on the grounds that there was insufficient evidence to conclude that an EIA was completed in respect of the effects of the development on the hen harrier.

McDonald J found against the applicant in relation to the balance of the claim made by it. McDonald J would hear the parties in relation to any consequential orders that should follow. McDonald J would also hear the parties in relation to whether or not the matter should be remitted to the respondent.

Decision quashed.

JUDGMENT of Mr. Justice Denis McDonald delivered on 20th December, 2019
Table of Contents
Introduction 3
The grounds of challenge 5
Material contravention of the development plan 6
The legal requirements for appropriate assessment 11
The statement of ground 13
The challenge to the late delivery of expert evidence by the applicant 18
Some subsidiary issues raised by the applicant in relation to the assessment carried out by the respondent 29
The assessment carried out by the inspector and the respondent 34
Did the assessment identify, in the light of the best scientific knowledge, all aspects of the development which could adversely affect the hen harrier or the freshwater pearl mussel? 35
Potential impacts on the hen harrier 35
The potential impacts on the freshwater pearl mussel 39
Have the necessary complete precise and definitive findings and conclusions been made? 44
The hen harrier 44
The freshwater pearl mussel 53
Peat slippage 66
Post consent conditions 71
Conclusions in relation to appropriate assessment 75
EIA 76
Overall Conclusion 81
Introduction
1

In these proceedings the applicant seeks to challenge a decision of the respondent dated 27th November, 2018 granting planning permission for the construction of a windfarm and associated works on elevated ground between the villages of Gneeveguilla, County Kerry and Ballydesmond, County Cork. The application for permission for the proposed windfarm development envisaged the erection of fourteen turbines with a rotor diameter up to 120m and a blade tip height of up to 150m above ground level, two permanent meteorological masts, two medium voltage substations, one high voltage substation, thirteen site entrances comprising seven new site entrances and six upgraded site entrances, three barrow pits and adjacent repositories, the provision of new and upgraded internal site service roads and surface water management measures, temporary site compounds, underground cabling and associated infrastructure necessary to construct the development. The respondent, in its decision to grant permission, reduced the number of turbines from fourteen to twelve. As described in more detail below, the exclusion of two of the turbines from the development was largely prompted by concerns about the impact of those particular turbines on the hen harrier.

2

If allowed to proceed, the proposed development will span an area of approximately 96 hectares and will extend across 15 individual land holdings. The site is located to the west of and sloping towards the upper reaches of the Blackwater river valley. The southwestern extent of the proposed site is located close to the watershed between the Blackwater river and Laune river catchments. The site is drained by a number of tributaries of the river Blackwater including the Tooreengarriv/Carhoonoe, Mountinfant and Reansup streams. Although the site is located close to the watershed between the Blackwater and Laune catchments, all drainage serving the proposed infrastructure will be designed to discharge via the Blackwater catchment with one minor exception which is not relevant for present purposes.

3

The developer is the first named notice party namely Silverbirch Renewables Ltd (“Silverbirch”). Its application for planning permission for the proposed development was rejected by the County Council (the second named notice party) (“the County Council”) on 30 May, 2017 for the following reasons:-

(a) In the first place, having regard to the extent, size and scale of the turbines the County Council considered that the development would create a significant visual intrusion in the landscape by reason of the height and spatial extent of the proposed turbines which would be excessively dominant and visually intrusive. The County Council took the view that the development would therefore seriously injure the residential amenity and visual amenities of the area and would, inter alia, contravene Objective ZL-1 of the Kerry County Development Plan, 2015-2021:

(b) Secondly, noting that the site is located within the catchment of the Blackwater river which provides a home to the endangered freshwater pearl mussel, the County Council was not satisfied that the construction would not cause pollution of local water courses;

(c) Thirdly, the County Council took the view that two of the turbines (namely T8 and T9) are located within an area known as Barna Bog used by hunting hen harriers which may breed in the nearby Stacks Mullaghareirk Mountains, West Limerick hills and Mount Eagle Special Protection Area (“The Stacks SPA”). In particular, the County Council considered that the proposed development would cause the loss of hen harrier hunting habitat which would have a significant adverse effect on the Stacks SPA.

4

Silverbirch appealed the refusal of Kerry County Council to the respondent. In turn, the respondent appointed an inspector to review the matter and prepare a report with recommendations. The inspector conducted an analysis of the proposed development and reported with a recommendation that planning permission might be granted by the respondent for a development comprising twelve of the proposed turbines but excluding turbines T8 and T9. Thereafter on 23rd November, 2018 the respondent, by direction of that date, decided to grant permission. The relevant decision to grant subsequently issued on 27th November, 2018.

The grounds of challenge
5

The applicant seeks to challenge the decision of the respondent to grant permission for the development on the following grounds:-

(a) The principal ground on which the applicant seeks to challenge the decision of the respondent is that there was a failure to carry out and record any Appropriate Assessment in accordance with national and European law. In making this case, the applicant has raised concerns in relation to both the hen harrier and the freshwater pearl mussel;

(b) Next, the applicant makes the case that there is nothing to suggest that the respondent carried out an Environmental Impact Assessment ( “EIA”). In this context, although the issue is addressed in the report of the inspector appointed by the respondent, neither the direction nor the decision of the respondent record that the respondent carried out an EIA;

(c) Thirdly, the applicant contends that, in granting permission for the proposed development, the respondent has contravened s. 37 (2) of the Planning and Development Act, 2000 (“the 2000 Act”) in circumstances where (so the applicant contends) the proposed development materially contravenes the Kerry County Development Plan (“the development plan”).

6

In circumstances where the third of those issues is very net and can be disposed of briefly, I propose to deal with that issue first. Thereafter, I will address the first and second issues listed in para. 5 above.

Material contravention of the development plan
7

As noted above, one of the three grounds on which the County Council refused permission for the proposed development was that it would contravene Objective ZL-1 of the development plan. According to that plan, the purpose of Objective ZL-1 is to protect the landscape of County Kerry as a major economic asset and an invaluable amenity which contributes to the quality of peoples' lives. The applicant contends that the decision of the respondent to grant permission contravenes s. 37 (2) of the 2000 Act. Under s. 37, the respondent may only grant permission for a...

To continue reading

Request your trial
26 cases
  • Cork Harbour Alliance for a Safe Environment v an Bord Pleanála
    • Ireland
    • High Court
    • Invalid date
    ...they may profoundly disagree, and with whose consequences they may have to live…” (para. 57) 461 . In Sliabh Luachra v. An Bord Pleanála [2019] IEHC 888 (“ Sliabh Luachra”), McDonald J. expressed the view that it was not always necessary that “every submission made to the respondent should ......
  • Joyce Kemper v an Bord Pleanala
    • Ireland
    • High Court
    • 24 November 2020
    ...very limited exceptions to which I will come the affidavits generated much heat but little light. In Sliabh Luachra v. An Bord Pleanála [2019] IEHC 888 McDonald J. emphasised that in judicial review proceedings the court is not engaged in a de novo hearing and does not itself carry out an a......
  • Crekav Trading GP Ltd v an Bord Pleanála
    • Ireland
    • High Court
    • 31 July 2020
    ...observations were cited with approval by McDonald J. in Sliabli Luachra Against Ballydesmond Windfarm Committee v. An Bord Pleanála [2019] IEHC 888 (at para. 189 While clearly important, I have assessed the adequacy of the reasons given by the Board for its decision in this case on the bas......
  • Stapleton v an Bord Pleanála and Others
    • Ireland
    • High Court
    • 13 February 2024
    ...2016 Act. 241 Sweetman v Bord Pleanála [2007] IEHC 153. 242 Sliabh Luachra Against Ballydesmond Windfarm Committee v. An Bord Pleanála [2019] IEHC 888. 243 Balz & Heubach v An Bord Pleanála and Cork County Council and Cleanrath Windfarms Ltd [2019] IESC 90; [2020] 1 I.L.R.M. 244 Ballyboden ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT