Locals can’t appeal the dismissal of challenge to permission for Kerry windfarm 

A local group has been refused leave to appeal the dismissal of its challenge to An Bord Pleanala’s permission for a €46m wind farm close to the village of Lixnaw in Co Kerry, writes Ann O’Loughlin.

North Kerry Wind Turbine Awareness Group (NKWTAG) had sought to overturn the Board’s July 2016 decision granting an appeal by Stacks Mountain Windfarm Ltd against Kerry County Council’s refusal of permission for 10 wind turbines.

Among a range of claims, the group alleged the proposed development did not comply with requirements of the Environmental Impact Assessment Directive and the Habitats Directive.

In his Commercial Court judgment last March, Mr Justice Brian McGovern upheld the Board’s decision as clear, properly reasoned and in accordance with law and rejected the group’s arguments the Board failed to carry out or record any proper appropriate assessment (AA) or any proper Environmental Impact Assessment (EIA).

He also dismissed claims the permission involved material contravention of an objective of the Co Kerry development plan concerning wind turbines.

That objective was not to permit development of wind farms in areas designated “open to consideration” in the Tralee and Listowel districts pending full assessment of the culmulative effect of all permitted turbines in the vicinity.

The Board gave “clear and cogent” reasons for finding this development, contrary to its inspector’s view, did not materially contravene the development plan, the judge said. The Board considered the objective “impractical” in terms of its implementation and contrary to national policy on increasing renewable energy penetration

The group then applied to the judge for the necessary certificate entitling it to appeal.

Refusing that certificate, Mr Justice McGovern said the applicants had failed to raise a point of law of exceptional public importance and also failed to show an appeal was necessary in the interests of justice.

The applicants argued they had raised such points, including whether the Board can conduct a lawful EIA for a wind farm development and associated grid connection in circumstances where the grid connection route was expressed as indicative only and not subject of any consent application.

Other points concerned the appropriate standard for recording of an EIA and the nature of the board’s obligations to give reasons for granting a permission that materially contravened the relevant development plan.

In relation to the grid connection point, the judge said the real question raised by the group was whether that connection needed to be assessed as part of the overall project. That point had been determined in another case, he said.

The extent of the board’s obligation to assess a project under the EIA Directive has also been subject of a number of decisions of the Court of Justice of the EU and is not, as the group argued, in a state of “considerable uncertainty”, he held.

There was also no uncertainty as to the appropriate standard for recording of an EIA or surrounding the extent to which the Board can grant permission in material contravention of a development plan, he ruled.

Another point was based on a “misinterpretation” of his finding the Board had not adopted its inspector’s screening as a full AA, he said.