Supreme Court: Permission granted by An Bord Pleanála to develop wind farm in Clare failed to provide sufficient reasoning



An Bord Pleanála have been unsuccessful in appealing an order of certiorari granted by the High Court which quashed its decision to grant planning permission for a wind farm development in County Clare.

Finding that the permission granted should be quashed “on much narrower grounds” than those given in the High Court, Chief Justice Frank Clarke said that the “complete, precise and definitive” findings were a necessary pre-condition to An Bord Pleanála having jurisdiction to grant permission where it had been determined that an Appropriate Assessment was required.

Background

McMahon Finn Wind Acquisitions Ltd made an application for permission to develop a wind farm consisting of six turbines, which was refused by Clare County Council in July 2011.

The developer appealed against that refusal to An Bord Pleanála, which granted permission in May 2014.

Thereafter, local resident Kathleen Connelly brought judicial review proceedings challenging the decision of An Bord Pleanála.

High Court

Ms Connelly alleged that An Bord Pleanála failed to:

  1. Carry out and/or record any screening assessment for Appropriate Assessment (AA), contrary to national and European law,
  2. Carry out and/or record any proper AA under national and European law,
  3. Carry out and/or record any proper Environmental Impact Assessment (EIA) under national/European law, and
  4. Consider or have regard to its obligations under s.37(2) of the Planning and Development Act 2000.

In the High Court, Justice Barrett decided to quash the decision of the Board granting permission. Ms Connelly’s objection in relation to s.37(2) of the Planning and Development Act 2000 was rejected by the High Court, however in considering the other objections raised by Ms Connelly, Justice Barrett said that An Bord Pleanála relied on generic reasoning for its decision in breach of its duty. In this regard, Justice Barrett held that it was not acceptable for a public decision-making body to issue a decision which refers to “an ocean of material consulted or relied upon” in support of its decision “and to leave an affected party thereafter to fish in that ocean for what she might catch there of relevance…”.

Justice Barrett concluded that An Bord Pleanála, in reaching its decision, had breached its obligations regarding the recording of the screening assessment for the AA, the AA itself, and the EIA – as such, Justice Barrett said that the cumulative effect of these breaches gave rise to an order of certiorari.

Supreme Court

An Bord Pleanála appealed the decision of the High Court to the Supreme Court by way of a leapfrog appeal.

Mr Chief Justice Clarke observed that the obligation to give reasons for decisions varied enormously, and said that the requirement to give reasons was “not intended to, and cannot be met by, a form of box ticking”. In this regard, Mr Chief Justice Clarke said that there were three specific areas of law to address:

  1. The criteria by reference to which a court should assess whether the reasons given are adequate in any particular case;
  2. The identification of the documents or materials which can properly be considered for the purposes of identifying the reasoning of the decision maker as part of the process of determining whether adequate reasons have been given; and
  3. The potentially separate question of whether European Union law requires, either for the purposes of an EIA or, perhaps more clearly, for the purposes of an AA, that reasons require to be given in any particular form or, importantly, whether certain express scientific findings require to be made prior to a sustainable decision occurring.

Mr Chief Justice Clarke concluded that Justice Barrett “imposed too exacting a standard on the Board in respect of the obligation under national law to give reasons”. Reversing the decision of the High Court in this regard, Mr Chief Justice Clarke said that the reasons given were “…adequate to enable any interested party to know why the Decision, insofar as it relates to the development consent, went the way it did and to consider whether there was any legitimate basis for seeking to mount a challenge”.

Furthermore, Mr Chief Justice Clarke was satisfied that the Decision and any other materials “either expressly referred to in it or can be taken by necessary implication to form part of the reasoning, provide adequate information to enable any interested party to assess whether an appropriate EIA has been carried out”.

In respect of the AA however, Mr Chief Justice Clarke said that “neither the Decision itself nor any other materials which were expressly referred to in the Decision or must be taken by necessary implication to form part of the process leading to the ultimate determination of the Board, can be shown to contain the sort of complete, precise and definitive findings which would underpin a conclusion that no reasonable scientific doubt remained as to the absence of any identified potential detrimental effects on a protected site having regard to its conservation objectives”.

Finding that the permission granted by An Bord Pleanála should be quashed, Mr Chief Justice Clarke said that the “complete, precise and definitive” findings were a necessary pre-condition to An Bord Pleanála having jurisdiction to grant a development consent in a case where it is determined that an AA is required – and An Bord Pleanála failed to make the sort of findings which the jurisprudence of the CJEU requires to be made as part of a valid AA.

Emphasising that the Supreme Court’s decision to dismiss the appeal was made “on much narrower grounds” than those identified in the High Court, Justice Clarke said that his reasoning for quashing the decision of An Bord Pleanála was confined to the grounds related to the AA.

  • by Seosamh Gráinséir for Irish Legal News

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