High Court: Wind Farm company refused judicial review of An Bord Pleanála decision

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In the High Court, Mr Justice Twomey refused to grant the applicants an order for certiorari of the Board’s decision despite the alleged errors and mischaracterisation of the lands, as he was satisfied that there was a reasonable basis to refuse planning permission.

Background

In June 2017, An Bord Pleanála refused the application to develop a wind farm of 25 wind turbines with a maximum height of 169 metres at a site, known as Castletownmoor, Co. Meath.

An Bord Pleanála pointed out that, based on the Wind Energy Development Guidelines 2006 issued by the Department of Environment, Heritage and Local Government, the proposed development would be regarded as a large wind farm.

The Board also submitted, and it was not controverted by the applicant, that the wind turbines to be used in the proposed development, at 169 metres would be among the tallest in the country.

The applicants, North Meath Wind Farm Limited and Element Power Ireland Limited sought an order of certiorari of the refusal of the Board to grant planning permission and an order to remit the matter back to the Board.

In April 2017, a Report as prepared on the proposed development by a member of the Inspectorate of the Board recommended the refusal of the planning permission.

The key issue was whether the alleged errors made by the Inspector in his assessment of the development, allegedly acted upon by the Board, were such as to vitiate the decision to refuse planning permission.

Kernel of the ground of challenge

The ‘kernel of the ground of challenge’ was the alleged error by the Board in its categorisation of the proposed development site as overwhelmingly ‘hilly and farmland’ rather than as being ‘hilly and flat farmland’ and ‘flat peatland’.

This categorisation was counter to the claim in the Environmental Impact Statement prepared on behalf of the applicants that the land in question was both ‘hilly and flat farmland’ and ‘flat peatland’.

Under the Wind Energy Development Guidelines 2006, to which the Board must have regard under s. 28(2) of the Planning and Development Act 2000, there is a greater scope for planning permission to be granted for wind farms on the lands if they were categorised as ‘flat peatland’ as well as ‘hilly and flat farmland’.

An affidavit submitted in support of the applicants case stated that “The Inspector and the Board erred fundamentally in finding that the landscape character type is “overwhelmingly … Hilly and Flat Farmland” on the basis that the issues raised in the for the siting and design of wind turbines on Hilly and Flat Farmland were very different from those for Flat Peatland and include “respect for scale and human activities, with due regard given to houses, farmsteads and centres of populations”.”

The applicants argued that the alleged error made by the Board in its characterisation of the lands is so serious as to vitiate the decision of the Board.

Discussion

In his analysis of judicial review of planning decisions, Justice Twomey stated that he would “adopt the succinct analysis of the nature of judicial review in a planning matters” set out in Dunnes Stores v. An Bord Pleanála IEHC 226.

In application to the present case, Justice Twomey said that the alleged errors by the Board were irrelevant, as the Board was entitled to make without this necessarily impacting upon the validity of the decision. Even if a decision is incorrect, Justice Twomey explained that the decision will not be disturbed in a judicial review if it is lawful. Emphasising that judicial review is a very limited jurisdiction, Justice Twomey said that considerable latitude is given to the decision maker to apply expertise in reaching a decision, which is particularly important in specialist areas.

Justice Twomey found that despite the alleged error by the Board in characterising the site as overwhelmingly ‘hilly and farmland’ rather than as being ‘hilly and flat farmland’ and ‘flat peatland’ and despite the admitted error in the Inspector’s Report regarding the number of buildings within a defined radius of a turbine, there was a reasonable basis upon which the Board could refuse planning permission.

Furthermore, Justice Twomey added that there was material before Board which was capable of supporting that decision.

Accordingly, the application for certiorari was refused.