At the Commercial Court yesterday, Mr Justice Robert Haughton said People Over Wind had raised a number of grounds of appeal of exceptional importance which it was desirable, in the public interest, for the Court of Appeal to determine. The appeal should be expedited, he added.
The judge last month dismissed the challenge by People Over Wind and another entity, Environmental Action Alliance Ireland, to An Bord Pleanála’s June 2014 grant of permission to Coillte Teoranta for construction of 18 power generating wind turbines near Cullenagh, close to the villages of Timahoe and Ballyroan, Co Laois.
In the proceedings, it was claimed the board failed to carry a proper environmental impact assessment concerning the proposed development. It was also claimed the board failed to have regard to Laois County Council’s decision refusing permission for the windfarm and a recommendation by a board inspector that permission be refused.
The case was against the board while Coillte, the Department of Arts, Heritage and the Gaeltacht and Laois County Council were all notice parties.
In his judgment last month, Mr Justice Haughton found the board carried out “a proper appropriate assessment” of the proposed development which “engaged with all the observations and included sufficient findings, examination and analysis.”
He rejected arguments the board failed to carry out “an appropriate assessment in the light of the best scientific knowledge available” or that the development materially contravened the Co Laois development plan.
Following the judgment, the applicants both sought certificates for leave to appeal on different grounds.
People Over Wind was represented by James Devlin SC while David Malone, whom the judge described as leading the second applicant, an unincorporated entity, made submissions on its behalf.
Yesterday, Mr Justice Haughton ruled People Over Wind had made out three grounds of exceptional public importance entitling it to an appeal. The second applicant had failed to establish any grounds entitling it to a certificate of appeal, he found.
The certified points of appeal relate to the issue of appropriate environmental impact assessment.
The determination of these points would be of benefit to appropriate assessment decision-makers and experts preparing Natura Impact Statements involving mitigation measures, the judge said.
One of the points is whether the Planning and Development Act 2000, and the Habitats Directive, oblige the board, when conducting an EIA, to ensure the proposed development would not adversely affect a National Parks and Wildlife Service objective of restoration, from unfavourable to favourable conservation status, of a protected habitat and species in a candidate Special Area of Conservation situated outside the proposed windfarm site. The species at issue is the Freshwater Pearl Mussel in the River Nore.
It was desirable in the public interest that appropriate questions concerning “best scientific evidence” also be certified for appeal, the judge said.
Those questions include what obligation, if any, is on the board to seek or procure the best scientific evidence in carrying out an appropriate assessment.
Another issue is whether the board was entitled to regard the scientific evidence before it as the best scientific evidence or was the High Court obliged to have regard to new or additional evidence in an affidavit of late January 2015.
The affidavit included material concerning the breeding programme of the Nore Freshwater Pearl Mussel.
The appeal court will also be asked to consider whether details of measures aimed at mitigating the impact of a development on a European conservation site may, after permission for a development is granted, be left for decision to the board and the developer. The precise wording of the questions will be decided later.