Val Martin v an Bord Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Cian Ferriter
• Judgment Date: 27 April 2022
• Neutral Citation: [2022] IEHC 256
• Docket Number: RECORD No. 2020 967 J.R.

Between:

Val Martin

Applicant

and

An Bord Pleanála

Respondents

and

Cavan County Council

and

Raragh Developments Limited

Notice Parties

[2022] IEHC 256

RECORD No. 2020 967 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Environmental impact assessment – Applicant seeking leave to apply for judicial review – Whether the respondent erred in law and acted ultra vires

Facts: The applicant, Mr Martin, applied to the High Court for leave to apply for an order of certiorari of a decision of the respondent, An Bord Pleanála (the Board), of 23 October 2020 upholding the grant by the first notice party, Cavan County Council, of planning permission to the second notice party, Raragh Developments Ltd, for the retention and completion of a meteorological mast and associated works at a wind farm known as the Raragh Wind Farm, Corrinshigo, Co. Cavan (the wind farm). In the event that he was successful with his leave application, the applicant sought an order of certiorari of the Board’s decision. The first ground of challenge related to the location of the site notices in respect of the application for planning permission. A site notice in respect of the application for planning permission was erected at the entrance to the wind farm on the R162-4 public road. It was alleged by the applicant that it was necessary for a site notice to be erected at either end of Corrinshigo Lane as this lane was said to be a “public road” within the meaning of article 19(1)(c) of the Planning and Development Regulations 2001 and that therefore the second notice party was in breach of its legal obligations. The applicant pleaded that as the application did not include an Environmental Impact Assessment (EIA) report, the grant of consent was made in breach of articles 2, 3 and 4 and annex II (3) (i) of Directive 2011/92/EU as amended by Directive 2014/52/EU titled “of the assessment of the effects of certain public and private projects on the environment” (the EIA directive) and in breach of s. 172 of the Planning and Development Act 2000. He pleaded that the EIA directive “commands the cumulative effects be assessed”. He pleaded that it followed that in granting the application the Board erred in law and acted ultra vires.

Held by Ferriter J that the erection of site notices in accordance with article 19 of the 2001 Regulations met the requirements of the EIA directive. As the applicant had made out no substantial grounds under article 19, Ferriter J held that he had no substantial grounds under article 6 of the EIA directive either. Ferriter J held that the applicant’s case in relation to non-compliance with the EIA directive did not disclose substantial grounds.

Ferriter J refused the applicant’s application for leave to apply for judicial review.

Application refused.

Judgment of Mr Justice Cian Ferriter delivered this 27th day of April 2022

Introduction

1 This is the applicant's application for leave to apply for an order of certiorari by way judicial review of a decision of An Bord Pleanála (“the Board”) of 23 October 2020 upholding the grant by Cavan County Council of planning permission to Raragh Developments Limited (“the notice party”) for the retention and completion of a meteorological mast and associated works at a wind farm known as the Raragh Wind Farm, Corrinshigo, Co. Cavan (“the wind farm”). In the event that he is successful with his leave application, the applicant seeks an order of certiorari of the Board's decision. The matter proceeded before me by way of a telescoped hearing.

Background

2 The applicant is a farmer who owns a house on a site adjoining the wind farm. He acted in person on the application. He is the Irish spokesperson for the “European Platform Against Wind Farms” and an environmental campaigner.

3 The applicant previously took a judicial review against an earlier decision of the Board declaring the connecting cables for the wind farm to be exempted development and was successful in that judicial review on the basis that the project required an Environmental Impact Assessment (“EIA”) assessing the cumulative effects of the whole project on the environment. The applicant seeks to run an equivalent argument in these proceedings i.e. that the application for permission to relocate the mast (which mast had been the subject of the original permission for the wind farm project) required a fresh EIA to assess the cumulative effects of the project as a whole. However, as we shall see, the factual and legal context of the issues arising in these proceedings is very different to that arising in his previous judicial review.

4 The wind farm comprises 5 turbines and associated development located in the townland of Corrinshigo, Co. Cavan. Permission for the wind farm had been granted by the Board following appeal, on 15 December 2010. That grant of planning permission included provision for the construction of an 85m high meteorological mast at a specified location on the site.

5 The construction of the wind farm began in February 2019 and the wind farm became operational in December 2019. No meteorological mast was built at that time. An application for permission for completion of the mast at a different location on the site, and retention of associated works, was made to Cavan County Council (“the Council) who granted that permission on 16 March 2020 following a Council planner's report recommending same.

6 The Council's decision was appealed to the Board by two third parties, one of whom was the applicant. The application was the subject of a report by a Board planning inspector, who recommended that permission be granted for the development subject to a schedule of four conditions. The Board accepted the inspector's recommendation and the decision of the Board granting the permission is recorded in the Board's Direction dated 19 October 2020 and the Board's Order dated 23 October 2020.

Reliefs sought

7 In his statement of grounds, the applicant seeks “ a declaration that the main wind farm was stage 1 of the project granted planning permission [by Cavan County Council and the Board] and that the grid connection was stage 2 of that project assessed with the cumulative effects of stage 1 [by Cavan County Council and the Board] and that the meteorological mast applied for is stage 3 of that project requiring an Environmental Impact Assessment Report and Environmental Impact Assessment under section 172 of the Planning and Development Act 2000, Directives 2011/92/EU amended by 2014/52/EU and the Habitats Directive requires the assessment of the cumulative effects of all of its stages”.

8 Directive 2011/92/EU as amended by Directive 2014/52/EU is titled “of the assessment of the effects of certain public and private projects on the environment” and is commonly known as the EIA directive.

9 The applicant also seeks a related declaration “ that the proposed meteorological mast described as a development the subject of this judicial review is not a development, but is a project under [the EIA directive] to which section 172 of the Planning and Development Act, 2000 applies”.

10 In relation to the question of public notification, the applicant seeks “ a declaration that the advice provided by Fintan Coffey of Cavan County Council in a memorandum of 13 May 2020 to [the Board] that Corrinshigo Lane is a private road is in error based on supporting affidavits of Val Martin, Eoin Martin and John Gargan that the lane is a public road and right of way which required public notices at each end.”

11 It is important to note that the applicant sought to shift his case at hearing where he sought to contend that, irrespective of the fact that Corrinshigo Lane may be a private road, there were entrances from public roads at either end of the lane such as to require public notices at these entrances in accordance with article 19(1)(c) of the Planning and Development Regulations 2001 (“article 19(1)(c)” and “the 2001 Regulations”, respectively). I will come to this contention later in the judgment.

12 A related declaration was sought “ that the advice provided by Fintan Coffey of Cavan County Council in a memorandum of 13 May 2020 to [the Board] was not in compliance with any facts existing on the ground in relation to Corrinshigo Lane and may have misled the Board in assessing the requirements of article 19(1)(c) of the Planning and Development Regulations 2001.” He also sought a declaration “that the opinion of the Board's inspector to the Board does not reflect that Corrinshigo Lane is public road requiring 2 notices in order to comply with the regulations.”

13 On the basis of those two essential grounds i.e. that consideration of the application for planning permission for retention and completion of the mast and associated works required an EIA report and an EIA under s.172 of the 2000 Act and the EIA directive, and that the lane was a public road and therefore two public notices of the application for permission were required on the road, the applicant sought a declaration that the Board acted ultra vires and erred in law in granting permission.

14 The statement of grounds also sought reliefs related to an absence of a procedure to change the location of a consented development to another location but this aspect of the matter was withdrawn by the applicant prior to the hearing upon receipt of further information which suggested that the point was not sustainable.

15 Finally, the applicant sought a declaration that s.50B of the Planning and Development Act 2000 as amended applies to these proceedings. S.50B refers to protective costs orders. It was agreed at the hearing that consideration of this issue, if required at all, should be held over until after I had given judgment on the telescoped application for leave/judicial review.

16 The Board and notice party contend that none of the grounds advanced by the...