By Ann O'Loughlin
A couple have lost their legal challenge to An Bord Pleanála’s permission for construction of a wind farm near their home in Co Cork.
Klaus Balz and his wife Hanna Heubach run a family horticulture business from their home at Bear na Gaoithe, located 637 metres from the proposed wind farm at Cleanrath, Inchigeelagh.
After a permission granted to Cleanrath Windfarm Ltd for construction of 11 wind turbines was overturned by the High Court in February 2016, the developer brought a fresh planning application.
Cork County Council granted permission for six turbines subject to 40 conditions. However, the Board, by a 3/1 decision of April 2017 on various appeals, granted permission for 11 turbines subject to 22 conditions. That permission was in line with many, but not all, recommendations of a Board inspector.
At the High Court today Mr Justice Robert Haughton dismissed all grounds of the couple’s judicial review challenge to the Board’s decision. He adjourned the matter for two weeks to allow the sides consider the judgment before final orders are made and costs issues are addressed.
Among the couple’s complaints was the Board inspector had failed to assess the submissions and scientific research materials presented to support their claims the 2006 Wind Energy Development Guidelines, and a UK department of energy publication on which those guidelines were based, are out-dated and unfit for purpose.
They also complained the inspector failed to assess that noise from wind farms may have a profound effect on human beings.
Mr Justice Haughton found the Board was not required to examine, analyse, evaluate and assess every submission and scientific paper put before it for the purposes of an Environmental Impact Assessment.
The Board, he also held, had examined and evaluated the couple’s submissions and scientific evidence in relation to “amplitude modulation” - the impact of the ‘swish’ noise generated from the movement of turbine blades.
The fact the Board had not adopted a particular condition recommended by its inspector – that noise limits should not exceed specified levels and that Cleanrath should submit a noise monitoring compliance programme before commencing development – did not invalidate its approval, he held.
He dismissed other arguments concerning the impact of the wind farm on the Gearagh special area of conservation. The couple had argued a lack of certainty about the cause of damage to the Gearagh SAC as a result of flood events over the last number of years meant the Board and its inspector could not have concluded beyond reasonable scientific doubt the project would not adversely affect the integrity of the Gearagh SAC.
The judge said, while the best scientific knowledge considered by the Board and inspector could not have definitively answered what historically has caused the degradation of the Gearagh SAC, that was not necessary to answer the “real” question - whether the proposed development, including all proposed mitigation measures, will affect the integrity of the Gearagh SAC in its current state.
The Board had expressly stated it had regard to the conservation objectives, he said. In carrying out an appropriate assessment, the Board had regard to the best scientific knowledge in accepting those mitigation measures would mean the proposed development would not affect the integrity of the Gearagh SAC.