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Ballyhorgan group allowed Supreme Court appeal

The Supreme Court has allowed a group opposed to the construction of a windfarm in Ballyhorgan, Finuge, leave to appeal over its failed High Court challenge to An Bord Plenála’s decision to grant the development planning.

The North Kerry Wind Turbine Awareness Group is now set for one last-ditch effort by way of the Supreme Court appeal to prevent company Stacks Mountain Windfarm from erecting what would be ten of the tallest turbines – at 156m each – in the entire country in the Finuge area.

Kerry County Council refused planning for the development in 2014 but it was appealed to An Bord Pleanála by the company which upheld the development. A subsequent challenge in the Commercial Court of the decision failed on hearing in March with the NKWTA group expressing its extreme disappointment.

The Supreme Court has now allowed the group what is known in legal circles as a ‘leapfrog’ appeal and one of the grounds on which the appeal was allowed will centre on whether or not the appeals board provided adequate reasons for its decision to uphold the Stacks Mountain Windfarm appeal of the Kerry County Council refusal.

In arguing its case for the appeal last week, legal representatives of the KKWTA group cited two other windfarm cases – that of Connolly vs An Bord Pleanála and that of Holohan vs An Bord Pleanála. In Connolly the Court granted the Bord leave to appeal against the High Court’s quashing of its decision to grant permission for a windfarm, for failure to give adequate reasons for the decision.

And in the case of Holohan vs An Bord Pleanála, the made a reference to the Court of Justice of the European Union on, among other issues, the duty of a competent authority to give reasons for its decisions subject to the Habitats Directive.

Granting leave for the appeal, the Supreme Court stated in relation to both earlier cases ‘the Court will grant leave to this applicant on the question whether in all the circumstances of the case the reasoning and analysis of the Board was sufficient.’