The Court of Appeal has cleared the way for development of a wind farm in Co Laois after rejecting a challenge to planning permission centring on concerns for a “critically endangered” freshwater pearl mussel in the River Nore.
Coillte can now proceed with erecting 18 wind turbines and associated development on lands at Cullenagh, close to the villages of Timahoe and Ballyroan.
People Over Wind challenged the development on a number of grounds, including concerns about a protected fauna in the River Nore Special Area of Conservation, the Nore freshwater pearl mussel.
The mussel is a “critically endangered” species, with an adult population in the River Nore of about 300, having been as high as 20,000 in 1991, Mr Justice Gerard Hogan noted in the appeal court’s judgment.
While the lifespan of the mussel extends from 70 to 100 years, the Nore freshwater mussel is not known to have reproduced itself since 1970.
Laois County Council refused permission for the development over concerns about impact on the mussel. An inspector with An Bord Pleanála also recommended refusal, mainly due to her view its scale would have an unduly negative impact on the visual amenities of local residents.
In June 2014, the Bord decided not to follow its inspector’s recommendation and granted permission with what the appeal court described as “key” conditions, including that specified environmental mitigation measures be implemented in full.
While dismissing the case in the Commercial Court, Mr Justice Robert Haughton said it raised points of law of exceptional importance which it was desirable, in the public interest, for the Court of Appeal to determine.
The points all relate to application of the EC Habitats Directive. The obligations imposed by Article 6 of that Directive – requiring member states to take steps to avoid deterioration of natural habitats and species in SACs – were transposed into Irish law by the Planning and Development Act 2000.
Giving the three judge appeal court’s judgment, Mr Justice Hogan said the River Nore lies downriver of the proposed wind farm and some 68 per cent of the development site drains to the freshwater mussel population.
The real concern before the Bord was that run-off from the constructive activities would contain high levels of sediment which would ultimately seep into the river, putting further pressure on an already endangered species located within the SAC.
Coillte and the Bord had taken “extensive steps” to eliminate that risk, the issue for the court was whether those steps were adequate and it was against that background the points of law had to be considered, he said.
The first point was whether the Habitats Directive obliged the Bord to ensure a proposed development would not adversely affect an objective of restoration, from unfavourable to favourable conservation status, of a protected habitat and species in a SAC situated outside the development.
It would be “quite unrealistic” to expect purely private individuals or companies to have the experience or resources, or even the legal entitlement, to assist in achieving the restoration objective, he ruled. It was sufficient the application for permission demonstrates the proposed development will pose no threat to the integrity of the SAC.
The second point concerned whether the scientific evidence before the Bord was adequate in assessing the planning application.
The judge said the Bord was obliged to have access to the best scientific knowledge reasonably available and the evidence before it was such it was entitled to regard it as the best scientific evidence for the purposes of deciding the appeal.
The Bord’s permission conditions sought to ensure no silt or sedimentation whatever will enter the water courses from the windfarm, he said. If that was achieved, it would address the concerns of a scientific expert for the two groups.
The third question was whether the Bord was entitled to grant permission and leave details of mitigation measures to be agreed later between the developer and relevant authorities.
The Board’s delegation to the planning authority of the finalisation of such matters was not unlawful, the court ruled.
The points of law raised did not need to be referred for determination to the Court of Justice of the EU, it concluded.
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