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High Court quashes An Bord Pleanála decision to allow wind farm in County Clare

The High Court has issued an order of certiorari quashing the decision of An Bord Pleanála to allow a wind farm to be built in County Clare on the grounds that they did not comply with the requirements of the Planning and Development Act 2000.

Ms Kathleen Connolly had sought an order quashing a decision of An Bord Pleanála that would allow the wind farm to be built by her house.

The wind farm had initially been refused planning permission due to concerns about the visual and noise impact, the risk of water pollution and the danger it might pose to local wild life.

Following a report by an inspector appointed by An Bord Pleanála, further information was sought from the developer and notice was given to those who had made submissions or observations to An Bord Pleanála.

Following the submission of the developer, the An Bord Pleanála issued a decision, finding that its concerns had been dealt with, and that the proposed development would not have unacceptable effects on the environment.

Ms Connolly contended that An Bord Pleanála failed: (1) to carry out and/or record any screening assessment for appropriate assessment, contrary to national and European law, (2) to carry out and/or record any proper appropriate assessment under national and European law, (3) to carry out and/or record any proper environmental impact assessment under national/European law, and (4) to consider or have regard to its obligations under s.37(2) of the Planning and Development Act 2000.

The first complaint related to s.177U of the Planning and Development Act 2000, which requires a screening for an appropriate assessment to assess whether the proposed development is likely to have a significant effect on a European site.

Section 177U(6) requires that notice be given to the applicant, any person who made submissions, and any party to an appeal or referral, that a determination has been made that an appropriate assessment is required, complete with reasons as to why.

Ms Connolly’s complaint was that An Bord Pleanála failed to give reasons. While An Bord Pleanála tried to belittle this argument by claiming that Ms Connolly’s case was “opportunistic” and she had no “bona fide concern for ecology”, the Court found that “In a system of government based on the rule of law there is nothing “opportunistic” in seeking to have a statutory body comply with the requirements imposed on it by law.”

The Court found that An Bord Pleanála was required to comply with the law and when it came to s.177U(6a) of the Act of 2000, it had not.

In relation to Ms Connolly’s second complaint, the relevant statute was s.177V of the Planning and Development Act 2000, which required an appropriate assessment to include a determination as to whether a development would adversely impact the integrity of a European site.

The Court found that An Bord Pleanála’s determination amount to little more than an assertion that ‘Having considered all the material put in front of it, the Board has reached the following conclusion…’

This was found not to satisfy the requirements of the statute, following Kelly v. An Bord Pleanála [2014] IEHC 400, which found that reasons must be given to enable interested parties and courts to assess the lawfulness of the decision.

In the present case, the Court found that “what is required of An Bord Pleanála are complete, precise and definitive findings and conclusions of a degree of specificity sufficient that a party minded to seek judicial review of such determination can turn readily to the particular observations, reasoning or conclusions in, say, a particular report or text to which reference is made, rather than simply being told that somewhere in an ocean of documentation is some stream of logic that An Bord Pleanála favours”.

The Court also observed, in relation to the Board’s attacks on Ms Connolly’s case, that it was “a little rich for a decision-maker to issue a decision that is so generic in nature as to leave an affected person searching for the exact rationale for what has been decided, but for that decision-maker then to come to court on review (as here)complaining that the affected person’s pleadings are so generic in nature as to leave the decision-maker grasping to identify the exact criticisms that it must meet”.

In relation to Ms Connolly’s third complaint, the Court noted that an environmental impact assessment is a process whereby a decision maker gathers information on the impact a development might have on “(a) human beings, flora and fauna, (b) soil, water, air, climate and the landscape, (c) material assets and the cultural heritage, and (d) the interaction between the factors mentioned in paragraphs (a), (b) and (c)”.

The Court observed that the report on the development had included a number of changes in the development’s size, location and structure.

Yet, there was no analysis of this in the Board’s report, and it was difficult to see that An Bord Pleanála has complied with the requirement in s.172(1J) of the 2000 Act to give a proper “evaluation of the direct and indirect effects of the proposed development”.

Moreover and separately, the court considered that the summary form of the text of An Bord Pleanála’s decision imparted next to no information to Ms Connolly.

In relation to the fourth complaint, the Court noted s37(2) of the Act did not apply, as the Board had not decided to grant permission even if the proposed development contravened materially the development plan, as it had simply disagreed with the planning authority’s decision and granted permission consistent with its powers of appeal.

As a side issue, the Court noted that two High Court judgments of relevance had been issued which the parties had asked the court to read and consider: Balz v. Another v. AnBord Pleanála [2016] IEHC 134 and Dunnes Stores v. AnBord Pleanála [2016] IEHC 226.

The court had done as asked and found nothing in either judgment that would cause it to depart from or vary the reasoning applied, or conclusions reached, in its judgment.

The Court concluded that as a result of the breaches of the Act of 2000, Ms Connolly was entitled to the order of certiorari sought.