In a judgement of the High Court on June 16, 2021 in the case of Sweetman -v- An Bord Pleanála (No. 1) Mr Justice Humphreys granted certiorari, quashing the decision of An Bord Pleanála permitting Bord na Móna to construct a Wind Farm Development consisting of 24 turbines which were to be 185 metres high at Derryadd in South Longford.
An Bord Pleanála made an application to the Court seeking to appeal that decision to the Court of Appeal and Bord na Móna indicated that it intended to continue participating in the case as a Notice Party.
A 2nd judgement was made by Mr Justice Humphreys on October 26, 2021 where he indicated that he accepted that there were points of exceptional importance arising from his initial judgement made in June.
The planning application had been lodged by Bord na Móna on the basis that permission for the development was sought using the concept of a “design envelope.” What this meant was that exact plans and specifications of the proposed development were not produced but rather indicative or typical plans. The Court had indicated that it had grave concerns regarding an open-ended application.
In this 2nd judgement Mr Justice Humphreys stated that he accepted that a certain limited flexibility could be allowed so long as no genuine planning issue was created thereby. The Judge rejected the fact that other applications may have been prepared on a similar basis and stated that this does not have a bearing on the question of how the regulations are to be interpreted.
The Judge indicated that a completely open-ended permission at one end of the scale goes far beyond what is necessary or appropriate and he stated, “indeed it makes very little sense.”
The Judge explored in his 2nd judgement the question of submitting “typical” designs. He stated that if the approval of plans and particulars by An Bord Pleanála was based on a typical design which had the effect that the developer could not depart substantially from such a design then there would not be a problem. But there is no provision in law for this. The EIA Report actually noted that the details of what is described as the “typical designs will not in fact be strictly adhered to but will be determined at a later stage in the process.”
The Judge proceeded to formulate questions in relation to the concept of a variable design application and flexibility, whether a “typical design” cannot be substantially deviated from and related issues in relation to the status of the law in this regard and the extent of options that would arise within the flexibility proposed.
The Judge went on to say that he would grant leave to appeal and certify the questions that he had raised as being ones of exceptional public importance on the basis of which it is in the public interest that there be an appeal to the Court of Appeal and he afforded Mr Sweetman, an opportunity to consider a cross-appeal if required.
However, after a number of weeks of deliberation and before the Order of the High Court granting Leave to Appeal was perfected, An Bord Pleanála indicated that they were not going to proceed with their Appeal to the Court of Appeal or the Supreme Court.
This decision by An Bord Pleanála not to appeal the matter further was then followed by Bord na Móna who, as a notice party would have been entitled to stand in the shoes of An Bord Pleanála and appeal the issues arising, has now likewise decided not to appeal the matter.
Mr Sweetman, represented by Mr Peter Bland Senior Counsel, Mr Michael O’Donnell BL and Mr Gabriel Toolan of Walter P Toolan & Sons Solicitors, High Street, Ballinamore, County Leitrim were awarded their costs in relation to the case.
The case at all times was supported and assisted by the ‘No To Derryadd Windfarm Group’ who were delighted at the final outcome that planning permission for this development has now been decisively refused.
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