By Ann O'Loughlin
Permission for a wind farm in Co. Clare has been overturned by the Supreme Court due to An Bord Pleanála’s failure to make “complete, definitive and precise” findings required by European law for a valid Appropriate Assessment of the project.
The judgment on the challenge by local resident Kathleen Connelly to the proposed development of six wind turbines at Coor West, Shanvogh, addresses important issues of Irish and European law concerning the extent of the Board’s obligations to give reasons for its decisions.
The Board appealed against a High Court finding quashing the Board’s May 2014 permission for the project, granted after the developer appealed Clare County Council’s refusal of permission.
The board rejected its inspector's recommendation to refuse permission and disagreed with various concerns of his, including about the potential impact of the wind farm on the Carrowmore Point to Spanish Point and Islands Special Area of Conservation and on the Mid Clare Coast Special Protection Area.
The High Court’s Mr Justice Max Barrett upheld Ms Connelly’s arguments that the Board, having carried out an appropriate assessment (AA) and environmental impact assessment (EIA), had not provided sufficient reasons for its decision granting permission.
In its appeal, the Board argued the High Court judgment set a “very high threshold” concerning the reasoning requirements for a planning decision maker when a decision involves either an EIA and/or an AA. If the High Court findings were upheld, that would have serious consequences for how the Board and other planning decision makers approach making decisions, it argued.
Today, a five-judge Supreme Court dismissed the Board's appeal but stressed it did so on the basis of "considerably narrower" findings than those made by the High Court.
Giving the court's judgment, the Chief Justice, Mr Justice Frank Clarke, said the High Court had imposed "too exacting a standard" on the Board in respect of the obligation under national law to give reasons.
The law on reasons does not require that one agree with the reasons given but only entitles an interested party to know what the reasons were, he said.
He was satisfied the reasons given by the Board in its decision were adequate to enable any interested party know why the Board's approval went the way it did and to consider if there was any legitimate basis to challenge that and reversed the High Court findings otherwise.
He was also satisfied that the Board's decision, and materials referred to in it, provided adequate information for any interested party to assess whether an appropriate EIA was carried out. He reversed the High Court findings the reasons were not adequate to demonstrate an EIA had been carried out.
However, "different consideration" applied to the complaints about the AA carried out by the Board, the Chief Justice said.
The High Court correctly found no reasons could be found anywhere in the materials to suggest why the Board decided that a full AA was required, he said.
The High Court also correctly held, provided the AA met the necessary requirements, that the failure to give adequate reasons for requiring a full AA was not itself sufficient to render a permission invalid.
Neither the Board's decision, nor any materials forming part of the process leading to the decision, contained the sort of "complete, precise and definitive findings" to underpin its conclusion no reasonable scientific doubt remained concerning the absence of any identified potential detrimental effects on a protected site, he held.
Such findings were a "necessary pre-condition" to the Board having jurisdiction to grant a development consent where it had determined an AA is required, he ruled.
The Board's permission must be quashed because it failed to make the findings which the jurisprudence of the Court of Justice of the EU requires to be made as part of a valid AA, he said.
The court will make final orders in the case, and decide costs issues, on a date to be fixed before the end of July.