By Ann O'Loughlin
The Supreme Court has agreed to hear an appeal by a local group over its failed challenge to An Bord Pleanala's permission for a €46m wind farm close to the village of Lixnaw in Co Kerry.
North Kerry Wind Turbine Awareness Group (NKWTAG) sought permission to appeal after the High Court upheld 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
The group had claimed the proposed development did not comply with requirements of the Environmental Impact Assessment Directive and the Habitats Directive.
It relied on a signficant Court of Appeal judgment of 2014 dealing with the Board's obligations, arising from a decision of the Court of Justice of the EU, to provide an "appropriate assessment" under the Habitats Directive.
In his High Court judgment last March, Mr Justice Brian McGovern upheld the Board's decision as clear, properly reasoned and in accordance with law. He rejected arguments the Board failed to carry out or record any proper appropriate assessment (AA), or any proper Environmental Impact Assessment (EIA), contrary to national and European law.
The group applied to appeal his findings and, in a published determination today, a three-judge Supreme Court said it would hear an appeal on the issue whether, in the circumstances of this case, the reasoning and analysis of the Board was sufficient.
The Supreme Court said its permission was made having regard to its decision to permit a Supreme Court appeal in another windfarm case, Connelly v An Bord Pleanala. The Connelly case raised issues about the level of analysis and reasoning required in decisions of An Bord Pleanala and those issues, the group argued, were relevant to the issues in its case.
The determination also arose because the North Kerry case raised an issue which has been referred by a High Court judge in another case, the Holohan case, for determination by the Court of Justice of the EU. That issue concerns the manner and recording of the EIA and AA.