Supreme Court says An Bord Pleanála failed to make ‘precise’ findings under European law
The Supreme Court has overturned planning permission for a Co Clare wind farm due to An Bord Pleanála’s failure to make “complete, definitive and precise” findings required under European law.
Permission for the project, a development of six wind turbines at Coor West, Shanvogh, was initially turned down by Clare County Council. The developer then appealed to the board, which approved the project.
When making its decision, the board rejected its inspector’s recommendation to refuse permission. It 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.
Local resident Kathleen Connelly then challenged the board’s May 2014 decision, which was later quashed in the High Court. 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 to grant permission.
In its Supreme Court 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 or an AA. If the High Court findings were upheld, that would have serious consequences for how the board and other planning authorities approach making decisions, it argued.
A five judge Supreme Court on Tuesday 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 part 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 its 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.
The Chief Justice was also satisfied 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.
However, he said “different consideration” applied to the complaints about the AA carried out by the board.
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. It 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.
A key requirement of a sustainable AA must involve identifying all aspects of the development project which might affect a protected site and must identify “complete, precise and definitive” findings and conclusions that no reasonable scientific doubt remains about the absence of identified potential detrimental effects.
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 that no reasonable scientific doubt remained concerning the absence of any identified potential detrimental effects on a protected site, he held.
The court will make final orders in the case, and decide costs issues, before the end of the month.