High Court dismisses judicial review against An Bord Pleanála for granting wind farm planning permission.

Neutral Citation: [2015] IEHC 271

THE HIGH COURT

COMMERCIAL

[2014/487JR]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)

BETWEEN

PEOPLE OVER WIND, ENVIRONMENTAL ACTION ALLIANCE IRELAND

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

LAOIS COUNTY COUNCIL, COILLTE TEORANTA AND THE DEPARTEMENT OF ARTS, HERITAGE AND THE GAELTACHT

NOTICE PARTIES

JUDGMENT of Mr. Justice Haughton delivered the 1st day of May, 2015

Introduction

1. In this application for judicial review the applicants seek an order of certiorari quashing the decision, dated 13th June, 2014, of the

respondent, An Bord Pleanála (“the Board” or “the respondent”) to grant permission to the second named Notice Party (“Coillte”) in

respect of the proposed development of an 18 turbine wind farm at Cullenagh, County Laois.

2. The first named applicant is a committee comprising representatives of some 70 concerned households in the area of the proposed

development and it made observations/submissions in respect of the initial application for permission to Laois County Council and in

respect of the appeal from the planning authority’s decision to the respondent.

3. The second named applicant is a non-governmental environmental organisation established for the purposes of protecting the

environment at Ballyroan, Co. Laois and the surrounding townlands. The second named applicant also objected to the planning

application and made submissions/observations at the appeal stage.

4. The factual background is as follows. Coillte applied for planning permission for a development of an 18 turbine windfarm near

Cullenagh, Co. Laois on 9th August, 2013 which was accompanied by an Environmental Impact Statement (“EIS”) and a Natura

Impact Statement (“NIS”). The proposed development included inter alia construction of a permanent meteorological mast, a single

story 38kv substation with sanitary facilities and parking spaces, underground cabling and strengthening and widening of roads to be

used during the construction and operation phases of the development. Members of the public, including the applicants and a number

of public bodies and persons made submissions in relation to the application. On 1st October, 2013, officials of a number of

departments of Laois County Council also submitted reports on the application.

5. On 2nd October, 2013, Laois County Council planning authority refused permission for the development on the basis that

appropriate or adequate consideration had not been given to the effects of the development on the environment in the EIS or the

NIS. The reasons for refusal are considered more fully below. Coillte then appealed the decision to the Board. Further information was

provided to the Board by Coillte in relation to the development following the application. Ms. Joanne Kelly was appointed inspector and

was tasked with producing a report on the proposed development which was completed on 11th February, 2014. The Board, after

examining the information before it granted permission for the development on 13th June, 2014. The applicants later applied to the

Court for judicial review of the Board’s decision.

6. These proceedings were heard on affidavit in the Commercial Court.

Order Granting Leave

7. By order of Ms. Justice Baker made on 31st July, 2014, leave was granted on grounds (2)-(14) to seek an order of certiorari

quashing the Board’s decision granting permission for the proposed development along with any such further orders as the Court

deems meet and the costs of the application for judicial review.

8. For completeness, grounds (1)-(14), delineated in para. (E) of the Statement Required to Ground an Application for Judicial Review,

are outlined below:-

“(1) The respondent failed to carry out a proper environmental impact assessment (EIA) as required under national and

European Law.

(2) The respondent failed to carry out a proper appropriate assessment (AA) as required under National and European

Law.

(3) The respondent had before it an environmental impact statement (EIS) that was inadequate in that it failed to

properly describe the proposed development and its effects and contained material that was inaccurate and incorrect.

Accordingly no or no lawful EIA was or could have been conducted.

(4) The respondent had before it a natura impact statement (NIS) that was inadequate as it did not properly describe the

proposed development or its effects on nearby European Sites. The planning authority and the notice party (the

Department of Arts, Heritage and the Gaeltacht) identified significant lacunae in the information provided by the notice

party developer, Coillte Teoranta. These lacunae were never satisfactorily addressed. Accordingly no, or no lawful AA was

or could have been conducted.

(5) The respondent failed to properly record its determination and failed to give any or any proper reasons for its

determination contrary to National and European Law.

(6) The respondent failed to have regard for the decision to refuse permission for the development by Laois County

Council. The Council found that the proposed development would contravene development objective NH13/001 of the

Laois County Development Plan 2011-2017 pursuant to s.37(2) of the Planning and Development Act 2000 the Board may

only grant planning permission where permission has been refused by reason of material contravention of a development

plan in specified limited circumstances. The Board had no regard to this section or its applicability to the decision of the

planning authority. The said decision is ultra vires, void and of no legal effect.

(7) The applicant herein raised a request for information pursuant to the European Communities (Access to Information on

the Environment) Regulations 2007 requesting a copy of the record of the environmental impact assessment and

appropriate assessment carried out. The applicant received a response on 18th July 2014. This response stated that the

EIA and AA conducted comprised all of the documents received during the course of the appeal. The respondent was

unable to furnish, or direct the applicant to, any particular record of the assessment. This is contrary to the requirements

of European Law.

(8) The respondent has nowhere produced an assessment of the development for the purposes of the EIA and Habitats

Directive. The record in the Board’s direction and decision is perfunctory and uninformative. It gives no proper account of

the assessment undertaken. In particular, it fails entirely to engage with the decision of the planning authority. It also

fails to engage with the recommendations and concerns of the officers of the planning authority and the Department of

Arts Heritage and the Gaeltacht in the course of the consideration of the planning application and the identified

deficiencies in respect of the information provided by the applicant for permission. These concerns were expressed again

in the context of the appeal and were echoed by the applicants and the public concerned. The decision is contrary to

law.

(9) The Board failed to require the submission of a proper revised EIS and NIS and/or failed to require proper further

information from the developer. The Board also failed to hold an oral hearing into the appeal despite being requested to do

so. At such a hearing, evidence could have been led by the notice party developer and, could have been tested by cross

examination. Having regard to the identified deficiencies and concerns expressed in relation to the information available,

the Board was not in a position to proceed to make a decision on the appeal.

(10) The Board’s inspector recommended a refusal or permission. The Board has failed to give any or any proper reason for

not following the recommendation of the inspector. Moreover, having regard to the fact that the inspector identified key

deficiencies in the information in the appeal, it was not open to the Board to overlook such deficiencies and grant

permission. No or not adequate reasons or justification is offered in this relation.

(11) The decision itself is void for uncertainty. Condition 1 of the grant of permission states as follows:-

“1. The development shall be carried out and completed in accordance with plans and particulars lodged with the

application, as amended by the plans and particulars submitted to An Bord Pleanála with the appeal, and was

further amended by the revised plans and particulars submitted to An Bord Pleanála on 9th day of August, 2013,

except as may otherwise by required in order to comply with the following conditions. Where such conditions require

details to be agreed with the planning authority, the developer shall agree such details in writing with the planning

authority prior to commencement of development and the development shall be carried out and completed in

accordance with the agreed particulars.

Reason: In the interests of clarity.”

(12) The application for permission was made to Laois County Council on the 9th August, 2013. It is entirely unclear what

is meant by the phrase “as amended by the plans and particulars submitted to An Bord Pleanála with the appeal, and as

further amended by the revised plans and particulars submitted to An Bord Pleanála on the 9th day of August, 2013.” No

information, revised plans or particulars were submitted to the Board on 9th August, 2013.

(13) The decision itself leaves over in its conditions key matters to be agreed with the planning authority post consent.

This is contrary to the requirements of EIA and AA which requires such matters to be determined before consent is given.

(14) The Board has failed to keep and/or maintain a proper file recording its decision. The applicant has obtained a copy

of the file from An Bord Pleanála. This file is in disarray, follows no particular order, appears to be incomplete, and is

impossible to follow. The Board has referred to this file in its correspondence with the applicant dated the 18th of July as

being part of the record of its decision making. The file that is available for public inspection provides no record of the

decision making process and is impossible to understand. Again, the Board has failed to maintain a proper record of it

deliberations contrary to law.”

9. Although not adverted to on affidavit, it appears from a submission made by Mr. Collins BL, who moved the leave application on the

applicants’ behalf, that the failure to grant leave to seek relief on ground (1) was a simple error of omission in the leave order.

However, this Court does not feel it necessary to speak to the minutes of the leave order because, for reasons explained later in this

judgment, ground (1) as framed is in such general terms that it does not comply with the requirements of Order 84, rule 20(3) which

prohibits assertions in general terms and imposes a requirement that grounds be stated precisely. In any event the applicants’

complaints in relation to the Environmental Impact Assessment (“EIA”) are stated with somewhat more particularity in grounds (3),

(8), (9) and (13).

10. On the application of Coillte these proceedings were admitted to the Commercial List by order of Mr. Justice Kelly made on 30th

September, 2014 . At that time it was indicated to the Court that the other notice parties, Laois County Council and the Department

of Arts, Heritage and the Gaeltacht (“DAHG”) would not be taking any part in the proceedings. Accordingly, the application as it

proceeded was opposed by the respondent and Coillte. No issue was taken as to the applicants’ locus standi to bring or maintain

these proceedings.

Scope of Judicial Review – Grid Connection

11. A preliminary issue arose as to the scope of this judicial review having regard to the terms of the leave order. The applicants

raised complaints in relation to the EIS, the EIA and the Appropriate Assessment (“AA”) under Council Directive 92/43/EEC on the

Conservation of Natural Habitats and of Wild Fauna and Flora (“the Habitats Directive”). In seeking to quash the Board’s decision in

their written and opening oral submissions and in the second affidavit of Ms. Paula Byrne sworn on 29th January, 2015, the applicants

sought to argue that, particularly in carrying out the EIA, the Board was obliged to have regard to the direct and indirect

environmental impacts of the proposed wind farm and the grid connection on a cumulative basis. They sought to argue that as there

was no description of the grid connection in the planning application or the EIS there was consequently no assessment of the

environmental impact of the grid connection which is an integral or fundamental part of the overall development. In making this

argument they sought to rely on the authority of O’Grianna v. An Bord Pleanála [2014] IEHC 632, a decision of Peart J handed down

on 12th December, 2014.

12. In the O’Grianna case, Peart J had to consider a similar argument in relation to a planning permission granted by the Board in

respect of a 6 wind turbine wind farm in County Cork. In that case, as in the present case, the application indicated that it wasn’t

possible to determine the line or form of the grid connection at the date of application for planning permission so the planning

application did not include an application for permission relating to the grid connection. Peart J found that there had not been any

assessment of the potential environmental impact of the second phase of the wind farm development, namely the grid connection,

which he considered to be “an integral part of the overall development of which the construction of the turbines is the first part”

(para. 27). He agreed with the applicants that under Article 3 of Council Directive 2011/92/EU (the “EIA” Directive) the Board was

obliged to undertake an assessment of significant environmental impacts of the proposed development on its own and cumulatively

with the plans for the grid connection. At para. 28 he stated:-

“It seems to me that the fact that the developer is at the mercy of ESB Networks as far as the details of the plans for

that connection to the grid is concerned, cannot absolve the developer from compliance with the Directive in every

respect.”

13. In concluding, Peart J at para. 32 stated:-

“Rather, it points to a prematurity in the seeking of permission for the construction of the wind farm ahead of the detailed

proposals for its connection to the national grid from ESB Networks.

14. It became apparent during the course of this case that the facts that fell to be considered in O’Grianna were, in this respect,

similar to the facts in the present case. It therefore became clear to the Court that, had this matter been fully and properly raised at

the leave stage, the applicants were in a position to show substantial grounds sufficient to persuade the Court to grant leave.

15. Having heard submissions from all parties in relation to this issue I determined that this argument fell outside the grounds in

respect of which leave was granted, and that therefore the applicants were not entitled to pursue it. In so doing, I indicated that I

would give my reasons for such decision when giving my ultimate decision in the matter. Accordingly, in this section of this judgment I

give those reasons.

16. Mr. Devlin SC for the applicants argued that this ground of challenge was encompassed by a number of grounds pleaded in para.

(E) in the Statement of Grounds. He conceded that it was not expressly mentioned there or in the grounding affidavits sworn for the

purposes of the leave application by David Maloney and Paula Byrne on 25th July, 2014 and 28th July, 2014 respectively, although it

is clearly raised by Ms. Byrne in her affidavit sworn on 29th January, 2015.

17. Mr. Devlin SC pointed particularly to grounds (E)(3), (4), (8) and (9) – some of the “principal grounds” – and under the heading

“Factual Background”, to grounds (17), (19), (20), (22), (23), (36), (37) and (42). He also sought to rely on the fact that the

applicants in their submissions to the local planning authority at first instance expressed concern at the level of information in the EIS

and pointed to the absence of any description or detail of the proposed grid connection. He further relied on sections of the “Planners

Report” of Ms. Emer Uí Fhátharta from Laois County Council to the planning authority, where it is stated in the EIA Report under

appendix B of the Planners Report that the grid connection should be considered an integral part of the EIS so that all cumulative

effects can be assessed adequately. He also relied on the Planners Report itself, wherein it is noted that the “European Commission

Guidance on Wind Energy Developments and Natura 2000 sites state that grid connection is an integral part of considering the

impacts of a proposed development in accordance with Article 6(3) of the Habitats Directive”.

18. In terms of how the Court should address whether the case thus made out came within the scope of the pleadings, Mr. Devlin SC

referred to Sweetman v. An Bord Pleanála & Ors [2008] 1 IR 277, p. 291 at para. 41 where Clarke J addressed whether a general plea

before him challenging a failure to provide judicial review at a non-prohibitive cost could be interpreted as setting out a wider

challenge that the form of review itself was inadequate. Clarke J stated:-

“On any fair or reasonable reading, both of the individual clauses in the statement of grounds, or in the statement of

grounds taken as a whole, same can only be interpreted as setting out a challenge based on a contended for failure to

provide judicial review at a non-prohibitive cost.”

19. Mr. Devlin SC indicated that the approach in that case of a “fair or reasonable reading” was the approach that this Court should

take in relation to the Statement of Grounds, a proposition with which the respondent or Coillte did not disagree. Mr. Devlin SC also

referred to Fitzpatrick v. Board of Management of St. Mary’s [2013] IESC 57 where McKechnie J at para. 35 stated:-

“On a judicial review application moved under O. 84 of the Rules of the Superior Courts 1986 to 2013, the scope of the

relief sought and the grounds upon which such might be obtained are to be identified from the order of the High Court

granting leave, subject only to any amendment or variation subsequently allowed. Unless expressly or by interpretation,

implicitly, within such order, no relief or ground which differs therefrom can be argued.”

20. Again this seems correct in principle – the ground may be expressed or interpreted as being implicit in the wording used.

21. Mr. Devlin SC also relied on the decision of the Court of Justice of the EU (“CJEU”) in Altrip & Ors v. Land Rheinland – Pfalz (Case

C-72/12). This was concerned with whether German law properly transposed provisions of Directive 2003/35/EC, amending Directive

85/337/EC (which introduced EIAs) regarding the implementation of approved public participation measures arising from the Aarhus

Convention. That case is distinguishable on its facts in that the German law that was impugned permitted an applicant to bring an

action only in circumstances where no EIA had been undertaken. There was no such right of appeal where an EIA was carried out in

an irregular manner.

22. Mr. Devlin SC also relied on Article 10a of Directive 85/337/EC for the proposition that in such challenges there is an “objective of

giving the public wide access to justice…”, and he quoted from para. 36 of the judgment of the CJEU:-

“In providing that the decisions, acts or omissions referred to therein must be actionable before a court of law through a

review procedure to challenge their substantive or procedural legality, the first paragraph of Article 10a of Directive

85/337 has in no way restricted the pleas that may be put forward in support of such action…”

He also quoted from para. 45 of that judgment:-

“Where, there being no rules fixed in the sphere by Union law, it is for each Member State to lay down, in its legal system,

the detailed procedural rules governing actions for safeguarding rights which individuals derive from Union law, those

detailed rules…, in accordance with the principle of equivalence, must not be less favourable than those governing similar

domestic actions and, in accordance with the principle of effectiveness, must not make it in practice impossible or

excessively difficult to exercise right conferred by Union law…”

23. In relation to the principle of equivalence it seems that this does not assist the applicants as the same domestic procedural rules

relating to judicial review, detailed in the Planning and Development Act, 2000 as amended (“PDA 2000”) and Order 84, apply whether

the challenge is based on EU law or domestic law.

24. Mr. Devlin SC also quoted para. 52 from the judgment:-

“It appears, however, with regard to the National law applicable in the case in the main proceedings, that it is in general

incumbent on the applicant, in order to establish impairment of a right, to prove that the circumstances of the case make

it conceivable that the contested decision would have been different without the procedural defect invoked. That shifting

of the burden of proof onto the person bringing the action, for the application of the condition of causality, is capable of

making the exercise of the rights conferred on that person by Directive 85/337 excessively difficult, especially having

regard to the complexity of the procedures in question and the technical nature of environmental impact assessments.”

25. Mr. Devlin SC drew from this support for the proposition that the Court should have regard to the complexity of procedures and

the technical nature of EIAs in addressing the scope of the judicial review and that a generous construction should therefore be given

to the wording used in the Statement of Grounds.

26. The reliance on para. 52 seems particular to the facts of that case and not supportive of any general proposition that the Court

should extend some latitude to applicants in interpreting pleadings because of the “complexity of the proceedings in question” or “the

technical nature of EIAs”.

27. Finally, Mr. Devlin SC called in aid R(on the application of Wells) v. Secretary of State for Transport, Local Government and the

Regions – (Case C-201/02). That case concerned registration of an old mining permission for which an EIA was required but not

obtained and whether the remedy of revocation should be available to Mrs. Wells. Mr. Devlin SC relied on para.s 64-67 and 70 in

which the Court stated:-

“…it is clear from settled case law that under the principle of co-operation and good faith laid down in art 10 EC…the

member states are required to nullify the unlawful consequences of a breach of Community Law…the member states are

required to nullify the unlawful consequence of a breach of Community law…

Thus, it is for the competent authorities of a member state to take, within the sphere of their competence, all the general

or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to

have significant effects on the environment and, if so, to ensure that they are subject to an Impact Assessment…

The member state is likewise required to make good any harm caused by the failure to carry out an environmental impact

assessment.

The detailed procedural rules applicable are a matter for the domestic legal order of each member state, under the

principle of procedural autonomy of the member states, provided that they are not less favourable than those governing

similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively

difficult the exercise of rights conferred by the Community legal order (principle of effectiveness)…

The answer to the third question must therefore be that under art 10 EC the competent authorities are obliged to take,

within the sphere of their competence, all general or particular measures for remedying the failure to carry out an

assessment of the environmental effects of a project as provided for in art 2(1) of Directive 85/337.

The detailed procedural rules applicable in that context are a matter for the domestic legal order of each member state,

under the principle of procedural autonomy of the member states, provided that they are not less favourable than those

governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or

excessively difficult the exercise of rights conferred by the Community Legal Order (principle of effectiveness).”

28. The Court accepts that there is a clear obligation on member states and the courts. So far as Ireland is concerned, it has

implemented its obligations under the EIA Directives by enactment of the PDA 2000. So far as the courts are involved in the provision

of an effective remedy, there is access inter alia by way of judicial review regulated by s. 50 of the PDA 2000, under s. 50A and in

the procedural rules set out in Order 84 of the Rules of the Superior Courts (as amended from 1st January, 2012). These constitute

the “domestic legal order” subject only to equivalence and effectiveness. Mr. Devlin SC appeared to argue that because EIA

requirements are the subject of Community law there is an overriding obligation on this Court, which supersedes procedural provisions

in the PDA 2000 and Order 84, to entertain, consider and determine the grid connection issue even if it has not been as fully and

comprehensively pleaded as those provisions would require. In the view of the Court, this submission is not well made in light of the

repeated acknowledgement by the CJEU in the Wells case that procedural rules are a matter for the domestic legal order, in this case

Irish domestic law.

29. That this is so tends to be confirmed by the text of the EIA Directive. This Directive superseded the original EIA Directive- Council

Directive 85/337/EC, as amended. The EIA Directive specifically follows the Aarhus Convention relating to public participation. 2

recitals should be mentioned :-

“(20) Article 6 of the Aarhus Convention provides for public participation in decisions on the specific activities listed in

Annex I thereto and on activities not so listed which may have a significant effect on the environment.

(21) Article 9(2) and (4) of the Aarhus Convention provides for access to judicial or other procedures for challenging the

substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of Article 6

of that Convention.”

30. Article 11 then relates to access to review procedures. Articles 11(1) and 11(2) are particularly relevant :-

“1. Member States shall ensure that, in accordance with the relevant national legal system, members of the public

concerned:

(a) having a sufficient interest, or alternatively;

(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a

precondition;

have access to a review procedure before a court of law or another independent and impartial body established by law to

challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation

provisions of this Directive.

2. Member States shall determine at what stage the decisions, acts or omissions may be challenged.”

31. This provision clearly reflects the intention of the EU that member states should determine within their own domestic legal system

procedural provisions governing the judicial review. There is clearly nothing in the provisions in the PDA 2000 or Ord. 84 that would

prevent or impair the applicants’ right to have raised the point concerning grid connection which they say is encompassed by the

terms of their Statement of Grounds.

32. Mr. Devlin SC argued that the question of grid connection and deficiency highlighted by Laois County Council were “centre stage”

throughout the planning process and the proceedings. The Court should approach its task by interpreting the grounds in light of the

obligation to provide an effective remedy.

33. Mr. McDonald SC responded on behalf of Coillte, pointing out that both of the applicants raised questions around grid connection

in their submission to the local planning authority and the Board and were therefore well aware of the alleged deficiencies in the EIS

and EIA at all material times. However, they did not specifically raise the issue in the Statement of Grounds when leave was granted.

34. Counsel referred in some detail to s.s 50 and 50A of the PDA 2000.

35. Section 50(2) stipulates that no person can question the validity of any decision of inter alia the Board “otherwise than by way of

an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986)…”. In s. 50(6) it is provided

that an application for leave to apply for judicial review under Order 84 “…shall be made within the period of 8 weeks beginning on the

date of the decision…”.

Section 50(8)(a) provides that the High Court may extend the 8 week period:-

“… but shall only do so if it is satisfied that –

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within the period so provided

were outside the control of the applicant for the extension.”

36. In referring to s. 50A, Mr. McDonald SC emphasised subs. (3) which provides that the Court shall not grant leave unless “it is

satisfied that – (a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be

quashed.” Subsection (5) provides that:-

“If the court grants section 50 leave, no grounds shall be relied upon in the application for judicial review under the Order

other than those determined by the Court to be substantial under subsection 3(a).”

37. Mr. McDonald SC then relied on certain parts of the new Order 84 promulgated by Ministerial Order in S.I. No.691 of 2011 and

effective for all applications for judicial review commenced on or after 1st January, 2012. He pointed out that:-

• Sub rule 20(2)(a) requires the use of a form for the Statement of Grounds, Form No. 13 in Appendix T, which includes

the details listed in (a)(i) – (v) of the sub rule and in particular (a)(ii) “a statement of each relief sought and of the

particular grounds upon which each relief is sought”.

• Sub rule 20(3) states:-

“It shall not be sufficient for an applicant to give as any of his grounds for the purposes of paragraphs

(ii) or (iii) of sub-rule (2)(a) an assertion in general terms of the ground concerned, but the applicant

should state precisely, each such ground, giving particulars where appropriate, and identify in respect

of each ground the facts or matters relied upon as supporting that ground.”

• Sub rule 20(4) empowers the Court at the leave stage to allow the Statement of Grounds to be amended and for further

and better particulars to be stated, in the following terms:

“The court hearing an application for leave may, on such terms, if any, as it thinks fit –

(a) allow the applicant’s statement to be amended, whether by specifying different or additional

grounds of relief or otherwise,

(b) where it thinks fit, require the applicant’s statement to be amended by setting out further and

better particulars of the grounds on which any relief is sought.”

• Sub rules 21(3) – (5) empower the Court to extend time for a leave application but, only when satisfied that there is

“good and sufficient reason” and the reason for delay was “either – (i) outside the control of, or (ii) could not reasonably

have been anticipated by” the applicant. The Court may have regard to the effect which an extension may have on a

respondent or third party (sub rule 21(4)) and an application for extension “shall be” grounded upon an affidavit setting

out and verifying the reasons for the delay (sub rule 21(5)).

38. It was not disputed that these were the domestic procedural provisions that were applicable. Mr. McDonald SC submitted that

these provisions show the legislative intention to establish a stringent but “not unforgiving” regime for challenges to planning

decisions. The grounds must not be general but should be precise and particularised. The requirement to seek leave and establish

substantial grounds at that stage is an essential “filtering process”.

39. The period of 8 weeks, he contended, was ample time for the analysis of the impugned decision and for the preparation of a

Statement of Grounds which firstly states precisely each ground and secondly gives particulars which are the basis of those grounds.

This 8 week period satisfies the principle of equivalence. In this respect counsel relied on TD and others v. The Minister for Justice,

Equality & Law Reform [2014] IESC 29, a decision of the Supreme Court. In that case the Court considered the much shorter 14 day

period allowed by s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000 for challenge by way of judicial review to most asylum and

immigration decisions – which, it was previously found, did not infringe the Constitution – and found that it did not offend the principle

of equivalence. In his judgment in that Court, Fennelly J referred with approval to dictum in McNamara v. An Bord Pleanála [1998] 3 IR

453 in which Keane J (as he then was) found that the 2 month limitation period in respect of challenges to planning decisions, as it

then existed, applied to all such decisions whether the grounds of challenge were based on EU law or domestic law and therefore did

not offend the principle of equivalence.

40. In further support of the contention that the grounds must be pleaded with precision, counsel relied on AP v. The DPP [2011] IESC

2. In that case, the applicant sought to prevent a fourth trial on the grounds that it would be an abuse of process and unfair but

sought to argue a further ground of delay at a late stage. Murray CJ (as he then was) referred to the need for precision and the

tendency at substantive hearing “for new arguments to emerge…which in reality go well beyond the scope of a particular ground or

grounds upon which the leave was granted or simply raise new grounds.” He concluded:-

“In short it is incumbent on the parties to judicial review to assist the High Court, and consequentially this Court on

appeal, by ensuring that grounds for judicial review are stated clearly and precisely and that any additional grounds,

subsequent to leave being granted, are raised only after an appropriate order has been applied for and obtained.”

41. A similar statement appears in the judgment of Denham J in that case and in para. 9 she states that the High Court Judge in

addressing issues outside the grounds granted for review “fell into error”. Hardiman, J at para. 12 stated:-

“In too many judicial review cases, it will be found that little attention has been paid to the absolute necessity for a

precise defining of the grounds on which relief is sought until the case is actually before the Court. In my view, this case

furnishes an extreme example of this unfortunate tendency.”

42. Mr. McDonald SC derived further support for a strict approach from an earlier planning judicial review decision of Barr J in

McNamara v. An Bord Pleanála [1996] 2 ILRM 339 in which he declined to allow the applicant to argue that there were specific

defects in the EIS based on a general “catch- all” plea as it is was defective and failed to comply with statutory requirements. While

Barr J had no doubt that the specific points raised after the statutory period for challenge were substantial grounds he decided that:-

“…it is not open to the court to consider them if the board is correct in its submission that they were not notified to it

and all other parties within the statutory time limit.”

43. Barr J was persuaded in this by the decision of the Supreme Court in KSK Enterprises Ltd. v. An Bord Pleanála [1994] 2 IR 128 in

which Finlay CJ, after analysing the then relevant statutory provisions, commented:-

“From these provisions, it is clear that the intention of the legislature was greatly to confine the opportunity of persons to

impugn by way of judicial review decisions by the planning authorities and in particular one must assume that it was

intended that a person who has obtained a planning permission should at a very short interval after the date of such

decision in the absence of a judicial review be entirely legally protected against subsequent challenge to the decision that

was made and therefore presumably left in a position to act with safety upon the basis of that decision.”

44. In applying this dictum, Barr J at p. 351 stated:-

“Ground (e) is a broad, general “catch- all” plea which tells the developer little or nothing as to the actual nature and

basis for the challenge and what it should do to meet the case which will be presented against it on judicial review.

Ground (a) is also too wide and ought to have specified in what respects the EIS was alleged to be defective and/or

failed to comply with statutory requirements. The applicant is not entitled to rely on a general complaint about the EIS as

an umbrella to justify subsequent specific allegations not notified as grounds within time. As to ground (f); this raises the

fundamental argument that the board’s decision in granting permission was irrational and therefore void. However, the

allegation of irrationality as formulated in ground (f) which is confined to traffic only, is in general terms and lacks

specifics. In my view it does not comply with the statutory requirements as to notification of grounds of objection within

time.”

45. This application of the principles, albeit pre-dating the statutory provisions that now apply outlined earlier in this judgment,

nonetheless shows how the courts have approached pleadings in planning judicial reviews.

46. Mr. McDonald SC also pointed to the affidavit sworn on behalf of Coillte by Mr. Jude Byrne on 24th September, 2014 to support

the application to admit these proceedings to the Commercial List and to the statement of Mr. Byrne indicating the time constraints

applicable to the funding that Coillte hopes to obtain in order to implement the proposed development. In para. 6 of his affidavit of

the 24th of September 2014, Mr. Byrne refers to “REFIT II” (“Renewable Energy Feed in Tariff”) which is a funding scheme whereby a

minimum price for electricity generated over a 15 year period is guaranteed. In order to qualify, the project must meet certain time

dependent conditions.

47. Ms. Nuala Butler SC on behalf of the respondent adopted the submissions of Mr. McDonald SC and argued that the respondent’s

Statement of Opposition could not be read as addressing the grid connection issue now raised by the applicants and did not in fact

deal with such issue because it was never raised. She argued that neither the Board nor Coillte understood the grid connection point

to be made by the applicants in their Statement of Grounds and that just because the issue was raised in the Planners Report doesn’t

mean that the ground can be argued. Both Ms. Butler SC and Mr. McDonald SC referred to the specific detailed plea in the Statement

of Grounds in the O’Grianna case as exemplifying the manner in which the applicants in this case ought to have raised this matter in

their Statement of Grounds at the leave and substantive stages. Ms. Butler SC asserted that there is no such plea in the Statement

of Grounds and indeed no reference whatsoever to the grid connection nor to criticism of a failure on the part of the Board to carry

out a cumulative assessment under the EIA, taking into account the grid connection with the proposed development. Ms. Butler SC

submitted that the repeated amendments to s. 50, and particularly the addition of s. 50A, indicate the strictness of the approach to

these matters intended by the legislature. She relied on the earlier McNamara case of McNamara v An Bord Pleanála [1995] 2 ILRM

125, in which Carroll J cited with approval the dictum of Costello J in Scott v. An Bord Pleanála (High Court 1994 No. 274 JR –

unreported 27th July, 1994) concerning the relatively new provision of the Local Government (Planning and Development) Act 1992

that required an applicant for judicial review of a planning decision to show substantial grounds:-

“It seems to me that what the court has to be satisfied about is that there are substantial grounds for declaring the

decision invalid. To comply with this the court must examine and assess the grounds on which the decision is challenged.

In this case the court does not have to reach a decision on disputed questions of fact. If I am satisfied that there are

substantial grounds, then I must allow the application. If I am not so satisfied then I must refuse the application.”

48. She cited to similar effect the decision of the Supreme Court in the Scott case [1995] 1 ILRM 424. Ms. Butler SC argued that the

new rules which came into effect on 1st January, 2012 were intended to tighten up the requirements in relation to pleadings and also

the requirement that the factual basis for each ground be set out. The rules are tighter now than were the rules considered by Barr J

in his decision in the McNamara case. She argued that s. 50A overrides Order 84 rule 23, which of course is of general application to

judicial review cases. She also relied on my decision in Ratheniska v. An Bord Pleanála [2015] IEHC 18 in which I declined to allow the

applicants to pursue additional arguments in respect of which leave had not been granted and where the complaints/arguments had

been raised very late in the day. Ms. Butler SC argued that the High Court has a discreet role under s. 50/s. 50A of the PDA 2000 and

that it has no legal obligation or power to seek out defects or deal with complaints in respect of which leave has not been granted.

49. With regard to whether the involvement of the EIA Directive warrants a different approach to construing the scope of the judicial

review from the Statement of Grounds, Ms. Butler SC submitted that it did not and that such a contention was not supported by the

decision of the CJEU in Altrip. She drew the Court’s attention to Peterbroeck v. Belgian State (Case C-312/93). Although this was a

case concerning tax, Ms. Butler SC argued that it raised principles which are equally applicable to the present case. Peterbroeck had

argued a new plea in relation to the relevant tax liability before the Brussels Court of Appeal; the Belgian State contended that this

new plea was inadmissible because it was raised outside a time limit under Belgian law. The Court of Appeal had agreed with the

Belgian State. The question before the CJEU was then characterised in para. 11 as follows:-

“Having regard to the facts of the case before the national court as set out in its judgment making the reference, that

court in substance seeks to ascertain, first, whether Community law precludes application of a domestic procedural rule

whose effect, in procedural circumstances such as those in question in the main proceedings, is to prevent the national

court, seised of a matter falling within its jurisdiction, from considering of its own motion whether a measure of domestic

law is compatible with a provision of Community law when the latter provision has not been invoked by the litigant within

a certain period.”

50. As to that question, at para. 12 the CJEU said:-

“(T)he Court has consistently held that, under the principle of cooperation laid down in Article 5 of the Treaty, it is for

the Member States to ensure the legal protection which individuals derive from the direct effect of Community law. In the

absence of community rules governing a matter, it is for the domestic legal system of each Member State to designate

the courts and tribunals having jurisdiction and to lay down their detailed procedural rules governing actions for

safeguarding rights which individuals derive from the direct effect of Community law. However, such rules must not be less

favourable than those governing similar domestic actions nor render virtually impossible or excessively difficult the exercise

of rights conferred by Community law.”

51. The CJEU proceeded at para. 14:-

“For the purpose of applying those principles, each case which raises the question whether national procedural provision

renders application of Community law impossible or excessively difficult must by analysed by reference to the role of that

provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances.

In the light of that analysis the basic principles of the domestic judicial system, such as protection of the rights of the

defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into

consideration.”

52. Ms. Butler SC argued that it would not have been “impossible or excessively difficult” for the applicants to have raised the grid

connection ground at the leave stage and that no principle of European law could be invoked to justify the Court giving a broad or

strained construction of the Statement of Grounds to allow the applicants to argue this point.

Decision of the Court

53. The Court accepts that applications for judicial review are governed by s. 50 and s. 50A of the PDA 2000 and by Order 84 of the

Rules of the Superior Courts 1986 as inserted by S.I. No.691 of 2011. These rules in essence require that an applicant seek leave and

that this will only be granted on substantial grounds and that these must be pleaded “precisely”, “giving particulars where

appropriate” and they must “identify in respect of each ground the facts or matters relied upon as supporting that ground” (Order 84

rule 20(3)). It is indeed remarkable the extent to which the legislature has elaborated on these procedures in primary legislation.

54. These are stringent procedural requirements which allow little room for manoeuvre either for applicants or for the Court post the

leave order. In terms of how these provisions (and the now repealed provisions of the 1992 Act that preceded them) have been

applied in the Irish courts, the Court accepts the submissions of the respondent and Coillte. In particular, the Court takes note of

Article 11 of the EIA Directive and accepts that the procedural rules laid down in domestic law comply with Article 11. Furthermore, it

is quite clear that applicants for judicial review of planning decisions are enabled by the applicable domestic legislation to bring

challenges whether based on domestic law provisions or directly applicable EU law. The Court takes a view that it was not impossible,

or even excessively difficult, for the applicants to have raised a grid connection point at the leave stage.

55. The Court also accepts that in assessing the scope of the Statement of Grounds the approach that should be adopted is that of

a “fair and reasonable reading” – but not from the point of view of one or other parties to the proceedings but rather from the point

of view of the Court on an objective basis.

56. Adopting this approach and addressing the grounds in para. E more particularly relied upon by Mr. Devlin SC as being those that

could be construed in his favour, the Court concludes as follows:-

• (E)(3) – This ground refers in general to a failure in the EIS to properly describe the proposed development and its

effects and that it contained material that was inaccurate and incorrect. However, it made no specific mention of the grid

connection or a failure to describe same. The factual basis for this ground appeared in para.s (E)(17), (18), (19), (20),

(22) and (23). However, in none of these paragraphs was any mention made of the grid connection or a failure in the EIA

to take into account the cumulative effects, direct and indirect, of the development taken together with the grid

connection. It is true that paragraphs mentioned above from the Factual Background section refer to reports from officials

of a number of departments of Laois County Council which were submitted with the planning application. It is also try that

they identified alleged “significant deficiencies” in the information provided, and when considered, did raise the grid

connection issue. However, it must be borne in mind that these reports referred to a multitude of different issues arising

on the application and the EIS upon which they commented. How therefore were the respondent, notice parties or the

Court to be aware of the actual alleged deficiencies relied upon by the applicants unless these were mentioned precisely

and with detail in the Statement of Grounds? The answer to this rhetorical question must be that they couldn’t be

expected to be aware of a particular deficiency unless precisely pleaded – as was the case, for example, in the case of

Noise Data and Haul Routes. It could not be said that the respondent or notice parties were fairly put on notice that this

point would be raised. The attempt by the applicants to bring the grid connection/cumulative effect argument within

these paragraphs was an attempt to apply general pleas to a specific and detailed complaint which was not pleaded,

contrary to Order 84 rule 20(3).

• (E)(4) – This ground pleaded that there was an inadequate description of the proposed development in the NIS and that

the planning authority and DAHG identified significant lacunae in the information provided by Coillte. However, neither in

ground (4) nor in the factual grounds that followed did the Statement of Grounds identify the grid connection/cumulative

effects of that connection as being one of the “significant lacunae in the information” complained of by the applicants. In

addition to the paragraphs under Factual Background already mentioned above, para. (37) criticised the decision of the

Board for failing to account for how it overcame “the deficiencies identified by the planning authority, the [DAHG] and the

public”. However, those deficiencies are not anywhere defined as including consideration of the grid connection and its

cumulative effect. More particularly, in para. (38) the plea dealing specifically with the AA refers to screening and the

report of Ms. Uí Fhátharta but makes no reference to the grid connection and, in respect of the latter report, refers

specifically only to the inadequacy of a bird survey. In para. (42) the applicants pleaded in relation to the decision in the

EIA that it was:-

“entirely unclear how the Board purported to overcome the identified shortcomings and inaccuracies in

the information provided with the application. The Board simply did not have the information that it

required to conduct an assessment. The Council and its own Inspector identified key information that

was absent, and, notwithstanding, the Board has purported to conduct an EIA. This is legally

impossible.”

This is another example of a general plea that fails to make any specific mention of the gird connection.

• (E)(8) – This ground alleged a failure on the part of the Board to produce an EIA or AA and criticised the recording of

same in the Board’s decision. It also alleged failure “entirely to engage with the decision of the planning authority” and

with the recommendations and concerns of the planning authority and the DAHG in relation to “the identified deficiencies

in respect of the information provided by the applicant for permission”. Once again, this plea was in such general terms

that it required particularity and detail in order to encompass the gird connection which was absent both within the

paragraph itself and the ensuing Factual Background.

• (E)(9) – This criticised the Board for failing to require the submission of a proper or revised EIS and NIS and failure to

require “proper further information from the developer” and concluded “[h]aving regard to the identified deficiencies and

concerns expressed in relation to the information available, the Board was not in a position to proceed to make a decision

on the appeal.” Again, this general plea did not of itself identify the grid connection/cumulative effect as a deficiency and

this omission was not made good in the ensuing grounds.

57. The inference that the respondent and third party ask the Court to draw from the raising of this ground late in the day is that it

had not occurred to the applicants prior to the application for leave . It only emerged as a potential ground for review of the decision

following the delivery of the O’Grianna decision by Peart, J on 12th December, 2014. That is certainly consistent with the chronology

of events – the ex parte application for leave was made and granted on 31st July, 2014, the Coillte Statement of Opposition was filed

on 11th November, 2014 and the respondent’s Statement of Opposition was filed on 14th November, 2014. Neither of those

Statements of Opposition addressed the question of grid connection/cumulative effect. Peart J’s decision was handed down in

December and the grid connection/cumulative effect argument was first raised by the applicants in the second affidavit sworn by Ms.

Paula Byrne on behalf of the applicants on 29th January, 2015. In para. 23, the deponent states- “the grid connection is nowhere

outlined described or detailed in the EIS and no assessment was undertaken by the Board.” She goes on to quote from the first

applicant’s submission to Laois County Council which referred to the grid connection and its implications for the proposed

development; and also, in para. 24, to the submission by the Planning Officer of Laois County Council on foot of the application in the

Planners Report. The issue was also dealt with at some length in the applicants’ written submissions.

58. The Court considers that it can reasonably draw this inference and accordingly is of the view that the grid connection/cumulative

effect argument only emerged as a result of the O’Grianna decision. This reinforces the Court’s view that the applicants did not intend

to raise this point through the grounds pleaded in the Statement of Grounds and that they did not in fact receive leave in respect of

this ground.

59. Finally, it should be noted that, while the Court may under Order 84, rule 21(3) extend the period within which an application for

leave to apply for judicial review on any particular ground may be made, no such application was made to this Court either prior to the

hearing or at hearing, notwithstanding the importance of the grid connection/cumulative effect complaint. The applicants would of

course have had to demonstrate “good and sufficient reason” for seeking an extension of time and that the failure to seek leave for

this particular ground in July 2014 was because of circumstances outside of their control or “could not reasonably have been

anticipated”. They would also have had to show on affidavit the reasons for the failure to make the application at the leave stage.

These are onerous requirements and if the only reason that could have been advanced for failing to seek leave on this particular

ground in July 2014 was that there was a development in jurisprudence in December 2014, that would not have satisfied the Court or

given it jurisdiction to extend the 8 week period to allow the further ground to be pursued.

60. I now propose to deal with the grounds that were properly raised and pursued.

Ground (3) – Adequacy of the Environmental Impact Statement

61. In ground (3) the applicants plead that:-

“The respondent had before it an environmental impact statement (EIS) that was inadequate in that it failed to properly

describe the proposed development and its effects and contained material that was inaccurate and incorrect. Accordingly

no, or not lawful EIA was or could have been conducted.”

62. It is convenient here to also consider some related pleas in the Statement of Grounds. In ground (9) it is pleaded that “the Board

failed to require the submission of a proper or revised EIS…and/or failed to require proper further information from the developer”.

63. The applicants rely on the observations of a number of public bodies and Government Departments which criticised various facets

of the EIS provided by the RPS Group (“RPS”) on behalf of Coillte. The applicants placed particular reliance on shortcomings identified

in the Planners Report of Laois County Council which favoured refusal of permission, and appendices to same which included an EIA

conducted by the Council.

64. These included failure to consider emissions from generators and materials on site; turbidity monitoring of discharges of suspended

matter during construction phase; material safety data sheets; inadequate bird surveys that did not comply with Scottish Natural

Heritage guidelines; failure to assess noise impact at sensitive receptors closest to the proposed turbines and failure to analyse noise

impact based on wind speeds of 25m/s; concerns about water supply and local wells; decommission proposals for site restoration;

consideration of sites outside of Coillte ownership as alternatives; inadequate public consultation; inadequate consideration of the

impacts on tourism; concern that mitigation measures be dealt with in a construction environmental management plan instead of

within the EIS; no reference to cumulative impacts of other wind farm developments on terrestrial ecology; the absence of detail in

respect of certain other fauna; insufficient detail in relation to mitigation proposed to minimise impact on the River Barrow and River

Nore Special Area of Conservation (“SAC”); inadequate information for “landscape and visual assessment” and on mitigation of visual

impact; concern about the proximity of the haul route to the round tower in Timahoe; shadow flicker impact; potential damage to

road structures or dwelling houses on haul routes.

65. The applicants also relied on an observation to Laois County Council made by the DAHG on 1st October, 2013 as identifying

significant deficiencies in the information presented in the EIS. The document asserts that the impacts on protected fauna from

proposed bridge repair and bridge/culvert widening and road widening associated with the development had not been adequately

assessed; it focuses on a bat survey which Coillte carried out indicating little or no potential for roost loss, except where there are

alterations to the structures such as bridges leading to the site, but no such alterations were planned. It was pointed out that this

was at odds with other parts of the EIS which indicated that bridge alterations would be required. It indicated the nature of the bat

surveys required, and that these should include roosts which might be affected by the cutting of overhanging road side trees. The

DAHG also indicated that the impacts of bridge works on crayfish, kingfisher and other protected bird species needed to be assessed.

66. On 2nd October, 2013, Laois County Council planning authority refused permission, citing as the first of its reasons for refusal that

it was not satisfied that, having completed an EIA, the proposed development would not have significant impacts on the environment

due to the inadequacy of information provided in the EIS by RPS. The planning authority felt that the effects of the development on

the environment were not appropriately or adequately considered by RPS in the EIS provided to the planning authority.

67. The County Council’s second reason, the inadequacy of the AA, will feature later in this judgment.

68. The applicants assert in (E)(22) that despite the “identified shortcomings in the information provided in the EIS and NIS, the

Board decided not to request either a new EIS or NIS, nor did it raise any formal request for further information” pursuant to s. 131 of

the PDA 2000. They further highlight the submissions made by members of the public which raised shortcomings in the information

provided. Laois County Council made a short appeal submission, signed by Ms. Emer Uí Fhátharta and dated 25th November, 2013 in

which it stated that the County Council stood by its earlier determination.

69. Mr. Gavin of Water Services also made a submission reinforcing his earlier views to Laois County Council planning authority in

which he raised issues as to wind speed analysis and the placement of noise receptors. He noted that while Coillte stated that the

placement of noise receptors was agreed with Laois County Council, he was never party to same. He asserted that if there was such

an agreement there would be some form of record.

70. While Coillte consistently positively asserted that there was an agreement over the monitoring locations, there was never any

evidence adduced by or on behalf of the applicants beyond this assertion by Mr. Gavin that if there was agreement there should have

been a record of it. The Court cannot draw an inference from this observation in a supporting document to Laois County Council’s

appeal submission to conclude that there was no such agreement. The only evidence before the Court was that of RPS in the EIS

indicating that the locations were agreed in advance with Laois County Council – there was no evidence directly contradicting this. In

the circumstances, the Court finds that the monitoring locations were agreed in advance between RPS and some person or persons

representing Laois County Council.

71. In other respects, Mr. Gavin repeats a criticism previously made that there was a failure to assess the impact of various

construction activities in locations beside each other, and maintained that this was not addressed in Coillte’s appeal submission. He

also repeated his criticism that analysis should have occurred up to wind speeds of 25m/s.

72. The Board and Coillte argued that the EIS was not deficient and did not contain material that was inaccurate or incorrect. They

asserted that the information before the Board was not limited to the EIS but included all of the information contained in the Board’s

file, including the appeal documentation lodged by Coillte. They assert that the Board was entitled to make a determination as to the

adequacy of information before it – including the adequacy of the EIS and, being so satisfied, was enabled to carry out an EIA.

73. The Board and Coillte rely on 3 aspects of the evidence in support of their contentions. Firstly, they rely on the thoroughness and

comprehensiveness of the EIS. This comes in at 3 volumes – volume 1 is a “Non Technical Summary” running to some 25 pages.

Volume 2 is the “Main Report” running to some 318 pages. Volume 3 is entitled “Technical Appendices” and is a thick volume with

Appendices A-P containing the results of reports, surveys, assessments, photo montages, sub station drawings, forest management

plans, drainage design, consultation materials, etc. Mr. Jim Gannon of RPS, who compiled the EIS, swore a grounding affidavit in which

he stated that the DAHG, in their submission of 1st October, 2013, and the reports informing the Planners Report did not recommend

that planning permission be refused for the proposed development. Rather, they identified additional information that should be

sought, further assessments that should be carried out or certain conditions that should be attached to permission if granted.

74. Secondly, the Board and Coillte placed reliance on additional information contained in the Coillte appeal documentation and in

Coillte’s responses to a number of observations made at the appeal stage. These documents were opened to the Court and the Board

and Coillte asserted that they contained a lot of additional information including the results of a new survey and further detailed

reasoning in support of the original EIS. The text of the appeal document runs to some 127 pages, and is followed by Appendices

including a “Bridge Survey” of some 12 bridges on the proposed access routes to the development site, consisting of detailed infantry

and inspection reports on each bridge accompanied by relevant photographic evidence and details of proposed works in the context

of the proposed development. The second appendix was a “Structural Assessment of Timahoe Round Tower” – clearly in response to

criticisms of the EIS at the first stage of planning. Appendix C headed “Forestry Surface” dealt with forestry and the Freshwater Pearl

Mussel (“FPM”). There were other appendices dealing with advertisements and public participation in the process and in all these

further appendices cover in excess of 300 pages of print. In the appeal document Coillte’s experts dealt in detail with the EIA

undertaken in the Planners Report that was before Laois County Council and also dealt in detail with the AA which will be dealt with

later in this judgment.

75. Coillte also relied on a detailed response some 35 pages in length to the observation of Mr. Seamus Fingleton who made a

principled objection to the wind farm, and also highlighted perceived inadequacies in the EIS in respect of the human beings section,

tourism, impact on property values, negative impacts on economic activity, noise assessment, community impact, insufficient analysis

of the visual perspective, inaccurate analysis on protected views, perceived inconsistency with the county development plan,

compliance with European Landscape Convention, the cumulative impact of the proposal, and deficiencies in the photo montage

methodology. Each of these aspects was responded to in turn. The other response of Coillte was a combined one to observations

made on the appeal by the second named applicant, Mr. Ricky Whelan and Tracy and Stephen Hood. This response running to over 44

pages again dealt item by item with the various observation/objections raised by these observers. The Board and Coillte contend that

the new and additional material was all information that was before the Board, and that it was entitled, indeed duty bound, to take it

into account in assessing whether there was adequate information to carry out an EIA.

76. Thirdly, the respondent and Coillte rely on the Inspector’s Report. While the Board declined the petition from local residents to

convene an oral hearing, it did appoint Ms. Joanna Kelly of the Board’s inspectorate to provide a report on the appeal. Her report

considered all of the relevant documentation and included a full site inspection with an inspection of the immediate environs and

surrounding area including nearby settlements conducted over 2 separate site visits. She also took photographs which were

appended. Her report was comprehensive and ran to some 75 pages. Her assessment addressed the likely significant effects of the

proposal with due regard to the mitigation measures proposed and she set out what she considered to be the likely significant effects.

77. While the inspector considered that the EIS complied with the law, ultimately she recommended that permission be refused for 3

reasons:-

• First, the development by reason of excessive quantity and the overall height of the turbines proposed, in conjunction

with the sighting and spatial extent of the turbines across the site, would appear visually dominant and have a

disharmonious impact on the existing visual characteristics of the area.

• Second, having regard to the location of houses in close proximity to the turbines and the absence of mitigation

measures in relation to shadow flicker, the turbines would have an undue negative impact on the residential amenities in

the area.

• Third, works required to the haulage routes and in particular areas which might require improvements to facilitate the

transportation of proposed turbines were not adequately addressed.

78. The inspector considered the EIS submitted with the application was in compliance with the Planning and Development Regulations

2001 as amended (“2001 Regulations”) and contained the information specified in para. 1 of schedule 6. In coming to this conclusion

she noted the observations of third parties and Laois County Council. Firstly, she commented by quoting from a case relied on by the

respondent and Coillte in these proceedings, Klohn v. An Bord Pleanála [2009] 1 IR 59, in which McMahon J at p. 63 stated:-

“It is also worth emphasising that the environmental impact statement is a document submitted by the developer, the

terms of which are set when it is submitted. In contrast the environmental impact assessment is a process which is an

ongoing exercise undertaken by the decision maker. A great deal can happen and a great deal of information can be

accumulated, between the lodging of the environmental impact statement by a developer and the final decision by the

planning authority or by An Bord Pleanála.”

79. Secondly, the inspector correctly stated that her task was to identify the likely significant environmental effects resulting form

the development.

80. She considered that there was an EIS summary in non-technical language. With regard to alternatives to the proposed wind farm

the inspector considered that there was a “low bar in respect of the consideration of alternatives and the details provided within the

EIS would comply in respect of the requirements of outlining the main alternatives.” She was satisfied that the EIS adequately

identified the sites considered and set out reasons why the appeal site was more appropriate. She was satisfied that the EIS

contained the relevant information specified in schedule 6 of the 2001 Regulations including description of the project and land use

requirements; the main characteristics; emissions arising; description of aspects of the environment likely to be significantly affected

and of the likely significant effects; and an indication of any difficulties in compiling the information.

81. Before turning to the Board’s decision on the appeal it is necessary to refer to certain provisions of the PDA 2000 and the

regulations made thereunder.

82. Under s. 172(1) of the PDA 2000, the planning authority or the Board, as the case may be, are required to undertake an EIA

where a proposed development of a class specified in schedule 5 of the 2001 Regulations excceds a quantity, area or limit specified in

that schedule (subs. (1)(a)). An EIA is also required where the planning authority or the Board determines that a proposed

development of a class specified under schedule 5 would be likely to have significant effects on the environment even though it does

not exceed a quantity, area or limit specified in schedule 5 (Subs.(1)(b)).

83. In carrying out an EIA under s. 171A(1) of the PDA 2000, the planning authority or the Board are required to “identify, and

describe and assess” in an appropriate manner, in light of each individual case and in accordance with Articles 4 to 11 of the

Environmental Impact Assessment Directive, the direct and indirect effects of the proposed development on the following:-

(a) human beings, flora and fauna;

(b) soil, water, air, climate and the landscape;

(c) material assets and the cultural heritage,

(d) The interaction between the factors mentioned in paragraphs (a), (b) and (c).”

84. Article 3 of the EIA Directive, as amended by Directive 2014/52/EU which became effective from 16th May, 2014, provides:-

“The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each

individual case, the direct and indirect significant effects of a project on the following factors:

(a) population and human health;

(b) biodiversity, with particular attention to species and habitats protected under Directive 92/43/EEC and Directive

2009/147/EC;

(c) land, soil, water, air and climate;

(d) material aspects, cultural heritage and the landscape;

(e) the interaction between the factors referred to in points (a) to (d).”

It was not suggested that, to the extent that this makes some minor changes to the EU legislative regime, this had any relevance to

the challenge in these proceedings.

85. Where a proposed development falls under s. 172(1)(a), section 172(1B) of the PDA 2000 applies. This provides:-

“An applicant for consent to carry out a proposed development referred to in subsection (1)(a) shall furnish an

environmental impact statement to the planning authority or the Board, as the case may be, in accordance with the

permission regulations.”

86. Regulation 94 of the 2001 Regulations provides:-

“An EIS shall contain-

(a) the information specified in paragraph 1 of Schedule 6,

(b) the information specified in paragraph 2 of Schedule 6 to the extent that –

(i) such information is relevant to a given stage of the consent procedure and to the specific characteristics of the

development or type of development concerned and of the environmental features likely to be affected, and

(ii) the person or persons preparing the EIS may reasonably be required to compile such information having regard,

among other things, to current knowledge and methods of assessment, and

(c) a summary in non-technical language of the information required under paragraphs (a) and (b).”

87. Schedule 6 to the 2001 Regulations provides:-

“Information to be contained in an EIS

1. (a) A description of the proposed development comprising information on the site, design and size of the

proposed development.

(b) A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse

affects.

(c) The date required to identify and assess the main effects which the proposed development is likely to have on

the environment.

(d) An outline of the main alternatives studied by the developer and an indication of the main reasons for his or her

choice, taking into account the effects on the environment.

2. Further information, by way of explanation or amplification of the information referred to in paragraph 1, on the

following matters:-

(a) (i) a description of the physical characteristics of the whole proposed development and land-use requirements

during the construction and operational phases;

(ii) a description of the main characteristics of the production processes, for instance, nature and quantity of the

materials used;

(iii) an estimate, by type and quantity, of expected residues and emissions (including water, air and soil pollution,

noise, vibration, light, heat and radiation) resulting from the operation of the proposed development;

(b) a description of the aspects of the environment likely to be significantly affected by the proposed development,

including in particular:

• human beings, fauna and flora,

• soil, water, air, climatic factors and the landscape,

• material assets, including the architectural and archaeological heritage and the cultural heritage,

• the inter-relationship between the above factors;

(c) a description of the likely significant effects (including direct, indirect, secondary, cumulative, short, medium

and long-term, permanent and temporary, positive and negative) of the proposed development on the environment

resulting from:

• the existence of the proposed development,

• the use of natural resources,

• the emission of pollutants, the creation of nuisances and the elimination of waste,

and a description of the forecasting methods used to assess the effects on the environment;

(d) an indication of any difficulties (technical deficiencies or lack of know-how) encountered by the developer in

compiling the required information.”

88. Regulation 111(1) specifically requires that “the Board shall consider whether an EIS received by it in connection with an appeal

complies with article 94…”.

89. Regulation 111(2) provides:-

“Where the Board decides that an EIS does not comply with article 94… it shall issue a notice under section 132 of the

Act requiring the applicant to submit such further information as may be necessary to comply with the relevant article.”

90. Section 132 of the PDA 2000 provides:-

“(1) Where the Board is of opinion that any document, particulars or other information may be necessary for the purpose

of enabling it to determine an appeal or referral, the Board may, in its absolute discretion, serve on any party, or on any

person who has made submissions or observations to the Board in relation to the appeal or referral, as appropriate, a

notice under this section –

(a) requiring that person, within a period specified in the notice (being a period of not less than 2 weeks beginning

on the date of service of the notice) to submit to the Board such document, particulars or other information as is

specified in the notice, and

(b) stating that, in default of compliance with the requirements of the notice, the Board will, after the expiration of

the period so specified and without further notice to the person, pursuant to section 133, dismiss or otherwise

determine the appeal or referral.

(2) Nothing in this section shall be construed as effecting any other power conferred on the Board under this Act to

require the submission of further or additional information or documents.”

91. Section 172(1D) then provides:-

“The planning authority or the Board as the case may be, shall consider whether an environmental impact statement

submitted under this section identifies and describes adequately the direct and indirect effects on the environment of the

proposed development and, where it considers that the environmental impact statement does not identify or adequately

describe such effects, the planning authority or the Board shall require the applicant for consent to furnish, within a

specified period, such further information as the planning authority or the Board considers necessary to remedy such

defect”.

92. Section 172(1G) requires inter alia that:-

“In carrying out an environmental impact assessment under this section the planning authority or the Board, as the case

may be, shall consider –

(a) the environmental impact statement...”

93. Section 37(1)(b) of the PDA 2000 was relied upon by the Board and Coillte as being of critical importance. It provides, so far as is

relevant:-

“(b) subject to paragraphs (c) and (d), where an appeal is brought against a decision of a planning authority and is not

withdrawn, the Board shall determine the application as if it had been made to the Board in the first instance and the

decision of the Board shall operate to annul the decision of the planning authority as from the time when it was given...”.

94. The Board and Coillte submitted that this means that the Board has a de novo jurisdiction and it is in no sense bound by the

decision of the local planning authority or the Planners Report that formed the basis of the local authority decision in this instance.

95. They also submitted that the Board was entitled to take into account the Inspector’s Report insofar as it contains additional

material and carries out an EIA.

96. Turning to the Board’s decision it is notable that the Board did not request Coillte to submit further information or a revised EIS (or

indeed NIS). On p. 2 of its decision the Board listed 9 matters to which it had regard and this included “submission[s] made in

connection with the planning application and appeal, and the report of the Inspector”. The Board then concluded that it was satisfied

that there was sufficient information to undertake an AA and an EIA. Having undertaken an EIA in relation to the development, the

Board largely adopted the inspector’s assessment of environmental impacts with the exception of the 3 matters identified by the

inspector in her report. The Board concluded that the proposed development, by itself or cumulatively with other plans or projects,

would not be likely to have significant effects on the environment.

97. The Board then dealt specifically with the 3 matters in respect of which it came to different conclusions to the inspector and

provided its reasoning for same.

Decision of the Court

98. It has been consistently held in the courts that it is for the deciding authority to determine whether the EIS and the information

contained therein satisfies the requirements of the Regulations and is adequate. In Kenny v. An Bord Pleanála [2001] 1 IR 565 the

applicant sought to impugn a decision of the Board on the ground, inter alia, that the EIS was so defective that it did not comply with

the statutory requirements. McKechnie J, at p. 578 held:-

“Once the statutory requirements have been satisfied I should not concern myself with the qualitative nature of the

Environmental Impact Study or the debate on it had before the inspector. These are not matters of concern to this court.

The [planning authority] and the respondent, as these bodies must under the regulations, were satisfied as to the

Environmental Impact Statement, with the inspector and the respondent also being satisfied with the evidence, both

documentary and oral, produced at the oral hearing. That in my view, concludes the matter.”

99. McMahon J in Klohn v. An Bord Pleanála [2008] IEHC 111 also held that “[t]he adequacy of the information supplied in the EIS…is

primarily a matter for the decision maker…”.

100. Thus, the adequacy of the information supplied in the EIS is primarily a matter for the decision-maker. Secondly, the interval

between the making of the EIS and the EIA will inevitably mean that the decision-maker will have gathered information from many

other sources by the time a decision is called for by it. Moreover, the assessment process which it is obliged to carry out, the EIA,

will no doubt be greatly informed by its own expert knowledge and its expertise in this area, an input that undoubtedly will, in many

cases, fill any remaining information deficit in the documents submitted to it. In these circumstances, it is not surprising that a great

deal of discretion is left to the decision maker in making this call. From this, it can also be seen that a deficiency in the EIS submitted

by the developer does not invariably inflict a fatal wound on the assessment process which is carried out at a later phase in the

process, with the benefit of additional submissions and observations informed by its own expertise. The effect of a flaw in the EIS on

the subsequent assessment will, of course, depend greatly on the facts of each case.

101. While the local planning authority took the view on the basis of the Planners Report that the EIS was deficient and did not even

seek further information, the Board, as it was entitled to do, took a different view. The Board had considerably more information

available to it than the local planning authority and this formed part of the EIS such that it considered it could carry out the EIA. In

particular, the Board had before it a very detailed appeal document which included a survey of the haul routes and detailed responses

from Coillte to the observations on the appeal by certain parties. The Board clearly stated that it took into account all of this

information/documentation and that it determined that it had sufficient information to carry out an EIA as required by s. 172(1D). In

circumstances where the Board is so satisfied there was no obligation on it to seek further information. The standard of review

applicable to the Board’s decision in this respect is that set out in O’Keeffe v. An Bord Pleanála [1993] 1 IR 39. The Court cannot

interfere with the decision merely on the grounds that “…it is satisfied that on the facts as found it would have raised different

inferences and conclusions or…it is satisfied that the case against the decision made by the [Board] was stronger than the case for

it.” In order to show that the Board has acted irrationally, it would be necessary for the applicants to establish that the Board “had

before it no relevant material which would support its decision.” There clearly was relevant material before the Board. Nor could it be

said that in relying on this material, the Board’s decision was “fundamentally at variance with reason and common sense”. Accordingly,

the applicants must fail on this ground. It follows from this that the Board was entitled to conduct an EIA.

Recording and Adequacy of the Environmental Impact Assessment

102. This section encompasses the applicants’ complaints relating to the EIA, in grounds (5), (7), (8), (9), (10) and (13) and it is

convenient to deal with these together. In large part, the applicants relied on the conclusions of the inspector which led her to

recommend refusal of the permission, namely arising from the landscape/visual impact, effect of shadow flicker and noise and the haul

routes to the site.

103. The applicants also rely on the inadequacy of information received and placed before the Board based on the County Council

planning authority’s Planners Report. Once it is accepted, as the Court has done, that:-

1. There was a factual and rational basis for the Board’s decision, that it had sufficient information; and

2. There was a sufficient identification and description of the direct and indirect effects of the development on the

environment;

it follows that the Board was entitled and enabled to carry out and complete an EIA.

104. For the same reason, the applicants’ contention that there was no valid EIA because of inadequacies in the description of the

likely effect meant that full public participation in the process was not possible, cannot be sustained. There is no complaint that there

was any failure to comply with the statutory requirements in the advertising of the application. Nor is there a complaint that there

was a failure to make the relevant documentation, including the EIS, available or to conduct the appropriate statutory consultations

e.g. with the DAHG, Inland Fisheries Ireland (“IFI”), The Forest Service, and the Irish Aviation Authority.

105. The applicants contended that the information presented on appeal was “largely unchanged” from that considered inadequate by

Laois County Council’s planning authority and the DAHG. They contended that the Board should have exercised its power and

obligation under s. 172(1D) to seek further information. However, this obligation does not arise where the Board decides, as it did,

that it had adequate information. The submission is also incorrect in so far as the Board had significantly more information than Laois

County Council had at first instance, arising from the appeal documentation and the detailed response of Coillte to the Planners

Report and to the observations on appeal. The appeal therefore did seek to address the perceived deficiencies brought to Coillte’s

attention.

Did the Board carry out an Environemntal Impact Assessment?

106. Article 3 of the EIA Directive, as amended by Directive 2014/52/EU which became effective from 16th May, 2014, provides:-

“The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each

individual case, the direct and indirect significant effects of a project on the following factors:

(a) population and human health;

(b) biodiversity, with particular attention to species and habitats protected under Directive 92/43/EEC and Directive

2009/147/EC;

(c) land, soil, water, air and climate;

(d) material aspects, cultural heritage and the landscape;

(e) the interaction between the factors referred to in points (a) to (d).”

107. It is not disputed that in Commission v. Ireland (Case C-50/09), the CJEU held at para. 37:-

“In order to satisfy the obligation imposed on it by Article 3, the competent environmental authority may not confine itself

to identifying and describing a project’s direct and indirect effects on certain factors, but must also assess them in an

appropriate manner, in the light of each individual case.”

108. The CJEU further reasoned at para. 40 that:-

“However, that obligation to take into consideration, at the conclusion of the decision-making process, information

gathered by the competent environmental authority must not be confused with the assessment obligation laid down in

Article 3…Indeed, that assessment, which must be carried out before the decision-making process…involves an

examination of the substance of the information gathered as well as a consideration of the expediency of supplementing

it, if appropriate, with additional data. That competent environmental authority must thus undertake both an investigation

and an analysis to reach as complete an assessment as possible of the direct and indirect effects of the project

concerned on the factors set out in the first three indents of Article 3 and the interaction between those factors”.

109. It was pursuant to this finding that the legislature enacted amendments to the PDA 2000, including s. 171(A) which adopted the

language of Article 3 (in its then form) in its reference to an EIA being an assessment which “includes an examination, analysis and

evaluation…of the direct and indirect effects of a proposed development…” and the requirement under s. 172(1J)(c) that the Board

set out “the main reasons and considerations on which the decision is based”.

110. The applicants contend that there was no evaluation by the Board in this instance contrary to s. 171A and that, accordingly,

the EIA was incomplete. They call in aid the decision of Ms. Justice Finlay Geoghegan in Kelly v. An Bord Pleanála [2014] IEHC 400.

The applicants plead in this respect that the decision of the Board was “perfunctory and uninformative” and that it gave no proper

account of the assessment undertaken. They say particularly that the Board’s inspector recommended refusal of permission and the

Board failed to give any or any adequate or proper reason for not following the recommendation of its inspector.

111. The respondent and Coillte responded that an EIA was made, and is evident from the decision, and that the “main reasons” for

its decision in this regard are set out, in particular its reasons for differing from the 3 matters which prompted the inspector to

recommend refusal. They argued that the fact that the inspector made a negative recommendation does not mean that that must be

accepted by the Board; the Board is entitled to differ in its opinion. Nor does it mean that the Board cannot adopt and agree with the

inspector in so far as the inspector considered that an EIA was possible and made various findings in favour of the proposed

development. In this regard, they contended that the Board was fully entitled to rely on the examination, analysis and evaluation of

the inspector, without setting out in full in the EIS, the additional information provided on appeal and the inspector’s assessment.

They rely particularly on s. 172(1H) which provides that the Board “may have regard to and adopt in whole or in part any reports

prepared by its officials…”.

112. They submitted that the Kelly case, while setting out the legislative provisions with regard to EIA, was primarily concerned with

the AA under the Habitats Directive and in that context they accepted it as authoritative. They pointed out that Finlay Geoghegan J

set out the fundamental difference that the EIA is not determinative of the decision to grant or refuse planning permission and that

the Board has discretion to grant planning permission regardless of the outcome of the EIA.

Decision on whether the Board carried out an Environmental Impact Assessment

113. Turning to the Board’s decision, the Board decided that it was satisfied that the information before it was satisfactory for the

purposes of undertaking an AA and an EIA on the proposed development. Having taken into account the range of information and

documentation on file for the appeal, the court frinds that the Board did complete an EIA and concluded that the proposed

development, either by itself or cumulatively with other projects, would not be likely to have significant effects on the environment.

114. What is notable in the decision is the very specific adoption of the inspector’s assessment of environmental impacts with the

exception of certain matters which the Board sets out later in the decision. It also points to specific information arising from the

documents to which it also had regard when coming to its conclusion.

115. As we have seen, the inspector gave 3 reasons for her recommendation to refuse permission which the Board decided not to

follow. On pp. 6 to 8 of the decision, the Board provides analysis of the points raised by the inspector, explaining its reasons for not

adhering to those elements of her assessment. These narratives clearly set out the Board’s own assessment and evaluation of these

aspects. The Board then concludes at p. 8:-

“It is therefore considered that, subject to compliance with the conditions set out below, that proposed development

would accord with the National, Regional and County policies set out above, would not seriously injure the amenities of

the area or of property in the vicinity, would not result in detrimental visual or landscape impacts, would not give rise to

water pollution, would not be injurious to the cultural heritage of the area, would be acceptable in terms of traffic safety

and convenience, and would not be prejudicial to public health. The proposed development would, therefore, be in

accordance with the proper planning and sustainable development of the area.”

116. It is manifest from this wording that the Board came to and made its decision in the manner outlined above. Furthermore, there

was evidence before the Board from which it could have reached its conclusion. The Court applies the reasoning of McMahon J in the

Klohn case under part VII to its approach to the EIA in the instant case:-

“It is recognized in cases such as this that the Court in reviewing the Board's decision will not interfere with the bona fide

exercise of its discretion in these matters. It is not the Court's function to second-guess the Board and substitute its own

decision for that of the Board. The legislature, in its wisdom, vested the power to make such a decision in a body which

has expertise and experience in these matters. Such a body is much better qualified and in a much better position to

make such technical decisions in this specialized area than the Court, which has to rely on expert evidence to inform it in

these cases. The courts will only interfere in such decisions where they appear so irrational that no reasonable authority

or decision maker in this position would have made such a determination…Although the attitude has been criticized as

being over-deferential, this judicial restraint is now well-established in our jurisprudence. Whether it will have to be

reassessed in future because of more recent EU Directives in this area remains to be seen. Such a reassessment does not

arise in this case, however.”

117. This overall conclusion of the Court applies equally to the 3 aspects of the development which prompted the inspector to

recommend refusal. However, as the observations, the Planners Report and the reports upon which it was based all formed the

background to the inspector’s recommendations, it was incumbent on the Board in its decision to deal specifically with these aspects

and to give its reasoning for departing from the inspector’s recommendation, in carrying out its EIA. The necessity for the Board to

address these matters directly in its decision arises from the fact that were it not to do so, it would be open to the principled

criticism that it gave no reason for departing from a particular recommendation of its inspector. Accordingly, I now turn to these

matters identified by the inspector.

Visual Impact

118. The inspector undertook analysis of the “Landscape and Aesthetic Impacts” at some length in para. 14.2.0 running to some 4

pages. Her view was that the development would create some visual confusion and conflict and that the spatial extent and height of

the wind farm needed to be reduced to ensure harmony with the landscape. She felt that the visual impact of the turbines could be

considered “moderate to significant” and she would have liked a further photo montage or 3 dimensional model of the turbines in the

vicinity of the Pike.

119. The Board did not accept the inspector’s recommendation and laid out its reasoning for same at p. 6. It had regard to such

matters as the commercial forestry landscape of the site, the neighbouring agricultural landscape, the absence of designated views

and landscape amenity protection. Having considered that no cumulative visual impact would arise in connection with other existing or

permitted wind farms, the Board went on to state that it did not accept:-

“that it would be reasonable to require the current applicant to undertake a cumulative assessment in respect of potential

future projects in the vicinity that have not yet been proposed, and consider that this matter would be more

appropriately addressed in the relevant future planning applications.”

120. The Court is acutely conscious that any wind farm, particularly one with as many turbines as the proposed development, will

have an effect on the visual amenity of the site and surrounding area. Local planners and the Board must however have regard to

national, regional and local policy guidelines aimed at achieving a renewable energy target of 16% of overall energy consumption by

2020. This is in line with Ireland’s international obligations to meet the requirements of the Kyoto Protocol. The local planning

authorities and the Board have the unenviable task of taking the decisions that will facilitate the implementation of this policy but

which will also inevitably have a visual impact. While some residents may not be unduly concerned, others will understandably be

deeply unhappy at the effect on their lives, home or property. However, provided the planning authority/the Board takes into account

all relevant considerations, the law, including the EIA Directive as implemented into Irish Law, allows the granting of permissions where

the proposed development will have visual impact, even a significant impact.

121. To an extent, whether a proposed development has a significant impact is a subjective judgment, although in the case of a local

planning authority or the Board it is a collective decision and there are guidelines that must be considered.

122. In the instant case the Board was entitled to take a different view to that of the inspector and to conclude that while the

development would be visually prominent in some views it was nonetheless “acceptable”. Although this differing opinion was based

essentially on the same evidence, the decision was permissible. In O’Donohoe v. An Bord Pleanála [1991] ILRM 750, Murphy J stated

(at p. 759):-

“In the present case, however, the essential issue was whether the buildings which it was proposed to erect constituted

an overdevelopment of the site. The planning authority and Mr. O’Grada, the bord’s inspector, thought it was and the

bord thought it was not. It seems to me that the indisputable data permitted both conclusions. The site was delineated

on the plan attached to the planning application and the dimensions of the proposed four bedroomed bungalow were

likewise indicated thereon. It seems to me that that information alone would have entitled the bord rationally to have

formed the view that the proposed development would not constitute overdevelopment of the site notwithstanding the

fact that others whose views are entitled to respect took a diametrically opposite view. No matter how vigorously one

might disagree with the conclusion reached by the bord it would be impossible to say that it ‘flies in the face of

fundamental reason’.”

123. Regardless of what view the Court may take of the positioning and likely visual impact of these turbines, there was evidence

before the Board in relation to visual impact and in particular a series of photo montages which allowed it to come to the decision it

did.

124. With regard to the Board’s view that there would be “no significant cumulative visual impact” from the development, the

applicants were critical of the failure of the Board to take into account the combination of effects of the proposed development with

other developments, including other possible developments. However, no authority was cited for the proposition that the Board was

obliged to consider an unknown, undetermined and as yet unclear or possibly unconnected development. In Ratheniska, I followed the

decision of Kearns J (as he then was) in Sloan v. An Bord Pleanála [2003] 2 ILRM 61, where he stated at p. 72:

“It was submitted that the respondent had no obligation to consider matters which must be the subject of a separate

application for approval of a separate scheme as part of its obligation to consider all matters relating to a scheme

submitted to it for approval. Roads by their nature are necessarily inter-related. The illogical consequence of following the

applicants’ argument would be that no decision could be made on the 3km stretch of roadway without at the same time

considering the entire of the Euro route EO1 from Larne to Rosslare”.

125. In my view, the Board correctly concluded that it would not be reasonable to require the current applicant to undertake a

cumulative assessment of potential future projects in the vicinity that have not yet been proposed. These are indeed more

appropriately addressed in the relevant future planning applications. This may be of small comfort to those applicants most affected

by the visual aspect of this development but nonetheless, it is a fact that in considering any further wind farms in the vicinity, the

relevant local authority and on appeal the Board must take into account the combined visual effect of any such proposal with this

proposed development.

Noise Impact

126. Although noise impact on residential properties does not feature specifically in the inspector’s concluding recommendations, she

does earlier criticise the “unacceptably overbearing impact” of the turbines and she criticises the monitoring reported in the Noise

Impact Assessment recorded in Appendix B of the Technical Appendices of the EIS. She states that a number of residential properties

or noise sensitive receptors that should have been monitored were not included in the survey. Also, by reference to the data in the

EIS she opines in para. 14.3.9 that the proposed wind farm may be audible at lower wind speeds than that examined in the EIS

downwind of turbines at locations 04 and 01.

127. At para. 14.3.11 she concludes:-

“In the absence of a full background noise survey for the existing environment of the properties in closet proximity to the

turbines, and in the absence of definitive information regarding the type of turbines to be used particularly to achieve any

mitigation measures required, it is not considered that appropriate and full consideration has been given to the likely

effects of the proposed development would have on the nearest noise receptor.”

128. An issue arose as to whether the monitoring locations had in fact been agreed between Laois County Council and Coillte. As the

Court has already observed, it accepts on the basis of the evidence before it that the monitoring locations were agreed in advance

between RPS and representative(s) of Laois County Council. This finding however is not critical because the Board had before it, and

clearly considered, the inspector’s view that the most sensitive noise “receptors” or residences closest to the sites of turbines in the

vicinity of the Pike had not been monitored.

129. In coming to its decision in relation to this matter, the Board had regard to the distance of residential properties from the

development (minimum 600 metres) which it considered to be acceptable and as the primary mitigation measure. It also had regard to

the “comprehensive” noise monitoring carried out. It was of the view that noise would not seriously injure the amenities of the

properties in the vicinity. The Board considered the approach taken by Coillte in choosing the seven noise monitoring locations as

reasonable, based as it was on preliminary modelling. This part of the decision must be read in conjunction with condition 7 which

imposes limits of “(a) 5dB(A) above background noise levels or (b) 43dB(A) Leq, 10min” and provision for noise compliance monitoring,

which was introduced in the interests of residential amenities.

130. When one considers the EIS (chapter 8 and Appendix B) and Coillte’s appeal documentation, it is clear there was ample evidence

before the Board from which it could have come to its decision with regard to noise and condition 7. The EIS shows that RPS followed

approved guidance for assessing the existing background noise environment for the proposed development and the applicants took no

issue with this.

131. Coillte addresses the Planners Report criticism that no monitoring occurred at particular dwellings closest to the proposed

turbines in the appeal documenation. Coillte believed that the author of the Planners Report misunderstood the use of the accepted

approach of utilising proxy locations as demonstrative of the noise environment at all neighbouring properties. It must also be recalled

that the Court has accepted that RPS agreed the positioning of the receptors with Laois County Council. Also RPS Consultants in fact

engaged specialist noise consultants Hayes McKenzie Partnership to undertake the noise impact assessment.

132. Moreover, the Wind Energy Guidelines for Planning Authorities (2006) published by the Department of Environment, Heritage and

Local Government state that noise is unlikely to be an issue for properties more than 500 metres from the nearest turbine.

133. Accordingly, the applicants’ claims that the Board failed adequately or properly to identify, assess or evaluate the direct or

indirect effects of the proposed development from noise must fail.

Shadow Flicker

134. In their criticism of the Board’s decision with regard to shadow flicker the applicants relied on the inspector’s view that in the

absence of mitigation measures there would be an undue negative impact on residential amenities in the area. The inspector noted in

particular that the information was not sufficiently clear or sufficient for Coillte to come to the conclusion that all housing in the area

was below the potential for shadow flicker interference and that therefore no mitigation measures were required. She maintained that

some evidence in the EIS would seem to contradict this contention and that the source of some variables used in the WindPro

software gauging shadow flicker was not provided.

135. The Board expressly disagreed with the inspector on this issue, having had regard to the distance of the residential properties

from the turbines (a minimum of 600 metres), the provisions of the Wind Energy Development Guidelines, and “the comprehensive…

shadow flicker modelling undertaken in respect of houses in the vicinity”. It was satisfied that “shadow flicker would not seriously

injure the amenities of property in the vicinity”. The Board accepted the assumptions used by Coillte, the calculations undertaken and

variables used in the shadow flicker model.

136. Appendix I of the EIS deals with the Shadow Flicker Analysis and it is clear from a reading of this schedule that the Board was

entitled to take the decision that it did and that in fact the inspector had fallen into error. The appendix shows that each sensitive

receptor (dwelling houses close to the proposed development) is considered and the relevant data entered into the WindPro

programme and reductions relating to sunshine incidence applied.

137. Accordingly, the Board had evidence before it from which it could come to the conclusion that it did and indeed the applicants’

complaints appear to have no foundation whatsoever, based as they were on an error or misunderstanding in the Inspector’s Report.

It should also be noted that the Board did in fact decide to impose a condition relating to shadow flicker as outlined in condition 8.

Furthermore, non-compliance with condition 8 could be the subject of enforcement proceedings by the local authority or any affected

party.

Haul Routes

138. The inspector concluded:-

“The extent of works required to ensure the haul route is capable of being used by the exceptionally wide load vehicles is

also not considered to have been adequately addressed.”

139. Coillte in a robust section of the appeal document addressed this along with a broad response to the Planners Report which

suggested inadequacy of detail in relation to traffic, including construction traffic. Coillte relied on chapter 18 of the EIS and Appendix

J in which was presented a detailed route survey. Coillte also relied upon a Structural Survey of the haul route among other surveys

and produced a number of reports to accompany the appeal document including a Bridge Survey and Timahoe Tower Survey. Both in

the EIS and in the appeal document, Coillte submitted that a detailed Traffic Management Plan would be developed at construction

phase and submitted to Laois County Council for agreement prior to implementation.

140. Having had regard to the documents identified in the preceding paragraph, the Board, in deciding not to follow the opinion of the

inspector, noted that it:-

“…was satisfied that, for the purposes of Environmental Impact Assessment, a thorough assessment of all required

infrastructural improvement works had been undertaken in respect of the construction access route, and that the works

required to facilitate the delivery of oversized loads to the subject site were clearly set out. The Board noted that the

completion of these road and structural improvement works would be necessary in advance of the delivery of turbines to

the site, as set out in the Environmental Impact Statement.”

The Board attached a number of standard conditions for the type of development proposed, requiring “a construction-stage traffic

management plan, pre- and post-construction road condition surveys, and the imposition of a bond in this regard.” A Construction

Management Plan to be agreed with the planning authority was also required under condition 17.

141. The applicants argued that the Board did not have sufficient detail in relation to the haul routes to enable it to carry out an EIA.

They submitted that imposing conditions which postponed detail on the works to be done on the proposed haul routes to subsequent

agreement between the developer and the local authority meant that observers and the Board, as decision maker, were deprived of

the opportunity to properly consider the direct or indirect effects of the construction phase on the environment.

142. The respondent and Coillte argued that there was sufficient information before the Board for it to complete the EIA in respect of

the haul routes and that s. 34(4) of the PDA 2000 empowered the Board to impose conditions that would include mitigating measures.

They relied on s. 34(5) which establishes that:-

“[t]he conditions…may provide that points of detail relating to a grant of permission may be agreed between the planning

authority and the person carrying out the development; if the planning authority and that person cannot agree on the

matter the matter may be referred to the Board for determination.”

143. The Court is satisfied that the Board was entitled to differ from the inspector in relation to the adequacy of the information

before it. It was entitled to place reliance on its own expertise and decide that it was in a position to carry out an EIA and to assess

and evaluate the direct or indirect effects of the construction phase of the proposed development on the proposed haul routes –

based particularly on the information in the EIS, Appendix J of same and Appendices A and B in the appeal document.

144. It is also clear that the Board in principle is entitled to leave over to further agreement between the developer and the local

authority certain matters of detail and in this respect can impose conditions under s.s 34(4) and 34(5) of the PDA 2000. What is left

over for agreement must however, be a technical matter of detail- see Boland v. An Bord Pleanála [1996] 3 IR 435. If that test is

satisfied then there will be no breach of the requirement that the final planning permission be subject to proper scrutiny in that the

planning authority will have to be satisfied as to the appropriateness of agreement on the particular technical matter that is left over.

Coillte in its written submission referred in particular to Arklow Holidays Ltd. v. An Bord Pleanála [2006] IEHC 15, where the applicant

was refused leave to apply for judicial review on the ground that there was not an adequate EIA carried out in circumstances where a

number of conditions required a bedrock survey and an archaeological appraisal of the site. In that case, Clarke J referred to the

judgment of the CJEU in the R(Wells) case. He held that there was no breach of the EIA Directive where the Board imposes a

condition which complies with the test set down by the Supreme Court in the Boland case. On the application for a certificate for

leave to appeal to the Supreme Court in the Arklow case reported at [2006] IEHC 102, Clarke J stated at para.s 11-13:-

“The Directive requires that there be a proper scrutiny of a project of the type to which it relates in accordance with the

broad process specified in the Directive. It is, however, the case that the detailed procedural rules applicable to such

scrutiny are left to the determination of the domestic legal order of each member state provided that they are not less

favourable than those governing similar domestic situations: see Wells v. Secretary of State…

Where a condition of a planning permission granted by the Board refers a matter back to the planning authority for further

agreement there will be no breach of the requirement that the final planning permission be subject to proper scrutiny in

that the planning authority (which is after all a competent authority in respect of planning matters) will have to be

satisfied as to the appropriateness of agreeing to whatever matters are left over.

The argument in respect of leave in this case turned on the contention that the public would not be involved in such

latter process. It is, of course, correct to state that the public has not direct involvement in the process whereby the

developer and the planning authority reach agreement in accordance with a matter left to such agreement by virtue of a

condition contained in the first respondent’s planning permission. However, the full context needs to be taken into

account. Firstly, as pointed out by counsel for the first respondent, it is important to note that in order to meet the

Boland v. An Bord Pleanála [1996] 3 I.R. 435 criteria, the matter left over for agreement must amount to a technical

matter of detail which is within the proper responsibility of the planning authority and which may require re-design in the

light of practical experience. Therefore, in order that the public not have an involvement in the agreement process, the

matter which is to be the subject of agreement must be a matter amounting to a technical question of detail.”

145. The Court also notes the decision of Hogan J in Keane v. An Bord Pleanála [2012] IEHC 324 in which the applicant sought to

argue that the permission was defective because no proper EIA was carried out and in particular that the haul routes had not been

assessed. Hogan J stated at para. 14:-

“Viewed objectively, it is difficult to see how the likely effects complained of could be regarded as having potentially

significant effects on the environment. Even assuming that matters turned out for the worse, the impact is likely to be

confined to damage to local bridges and access roads. While such an outturn would have to be regretted, such damage

is, in principle, at least, reversible and, furthermore, the developer would be liable for these costs. The potential impact is

further minimised by the fact that condition 16 requires the Council to conduct a road survey both before and after the

turbines have been hauled over the road network.”

146. In the view of the Court the conditions in the instant case relating to further agreement on the haul routes relate to technical

matters of detail. These matters of detail will have to be agreed between the developer and the local authority. Admittedly, while

members of the public will not have an input in relation to those agreements, nonetheless, following the authority of Clarke J in the

Arklow case, further agreement will provide the additional appropriate scrutiny required to ensure that direct or indirect environmental

effects are either eliminated or kept within limits that are acceptable to the planner. The Court is also persuaded that it should adopt

the same approach as Hogan J in the Keane case. The Court is therefore satisfied that the Board had ample evidence before it upon

which to make its decision with regard to haul routes and that it gave full and proper reasons for not following the recommendation of

the inspector in this regard.

Failure to Properly Record Determination

147. This ground was not pursued at any great length in argument. The applicants relied on a failure on the part of the Board in its

decision to fully or properly record its determination – the suggestion that the record was “perfunctory and uninformative”. The

applicants also relied on a formal request for information requesting a copy of the record of the EIA and AA to which response was

given on 18th July, 2014 to the effect that the EIA and AA conducted comprised all of the documents received during the course of

the appeal. In ground (14) it was also asserted that the Board failed to keep or maintain a proper file recording its decision and that

the file retained by An Bord Pleanála was “in disarray” and contained no record of the decision making process.

148. To a large extent these points have already been rejected earlier in this judgment. The Court is satisfied from p. 3 of the Board’s

decision that, having determined that it had sufficient information for the purpose, it proceeded to undertake both an AA and an EIA.

It is expressly clear from p. 4 of the decision that the Board completed an EIA. It is equally clear that the Board records in that

section its conclusion and decision that the proposed development “would not be likely to have significant effects on the

environment”. This is the record of its decision/determination and no further record is required under domestic or European law.

149. When the decision is considered as a whole, and in combination with those parts of the Inspector’s Report which the Board

accepted and adopted, the description of the record/decision as “perfunctory” or “uninformative” is simply not justified. In any event

and as I observed in relation to a similar argument raised in the Ratheniska case (see para. 127):-

“The mere fact that the resulting decision might be perceived to be “uninformative and perfunctory” clearly does not of

itself amount to any ground for review.”

150. With regard to the second point, the Board, in its response dated 18th July, 2014 to a request for a copy of the EIA, explained

that all information from the commencement of the appeal up to and including the Board’s direction is included in the Board’s file and is

available in its entirety.

151. A similar response was provided to the request for the record of the AA. Although the allegation was made in the course of the

proceedings that this was inadequate, no serious argument was propounded to suggest that the record relied upon by the Board as

set out in the letter of 18th July, 2014 failed to comply with any identified legal requirement in relation to the making or publication of

the record of the decision on either the EIA or AA.

152. Section 172(1J) of the PDA 2000 provides:-

“When the planning authority or the Board, as the case may be, has decided whether to grant or refuse consent for the

proposed development, it shall inform the applicant for consent and the public of the decision and shall make the following

information available to the applicant for consent and the public:

(a) the content of the decision and any conditions attached thereto;

(b) an evaluation of the direct and indirect effects of the proposed development on the matters set out in section

171A;

(c) having examined any submission or observation validly made,

(i) the main reasons and considerations on which the decision based, and

(ii) the main reasons and considerations for the attachment of any conditions, including reasons and

considerations arising from or related to submissions or observations made by a member of the public;

(d) where relevant, a description of the main measures to avoid, reduce and, if possible, offset that major adverse

effects;

(e) any report referred to in subsection (1H);

(f) information for the public on the procedures available to review the substantive and procedural legality of the

decision, and;

(g) the views, if any, furnished by other Member States of the European Union pursuant to section 174.”

153. The content of the decision and conditions attached are evident from the decision itself and also the Board’s directions that

preceded it which are in similar terms. As already indicated, the Board did evaluate the direct and indirect effects of the proposed

development which appears from the decision and those parts of the Inspector’s Report which it adopted. The Board gives its main

reasons and considerations both for its decision and for the attached conditions.

154. The applicants failed to identify any part of s. 172(1J) which they claimed had not been satisfied by the Board’s decision or the

availability of the record thereof to the public. The gravamen of their complaints seems to be that the public planning file was “in a

mess” when it was inspected. However, the almost inevitable consequence of making the Board’s planning file available to the public

for inspection is that in a case such as this where many parties are interested and numerous inspections of the file are undertaken,

the file will become disordered. That of itself cannot amount to a failure to comply with s. 172(1J) or be considered withholding from

the public relevant documentation or information. It cannot of itself amount to grounds for judicially reviewing the impugned decision.

This is particularly so where the applicants make only a general complaint and are not able to point to any particular information or

documentation as being “missing” from the file.

Failure to carry out a Proper Appropriate Assessment

155. Grounds (2), (4), (8) and (13) bear on this issue.

Legislative Background

156. The Habitats Directive provides legal protection for habitats and species of European importance established under the EU-wide

network of sites known as Natura 2000 sites protected under SACs. Also protected under these Nature 2000 sites are birds species in

Special Protection Areas (“SPAs”) designated under the Conservation of Wild Birds Directive (79/409/EEC) as amended by Directive

2009/147/EC (“the Birds Directive”).

157. Article 6 of the Habitats Directive provides-

1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if

need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and

appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the

natural habitat types in Annex I and the species in Annex II present on the sites.

2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural

habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in

so far as such disturbance could be significant in relation to the objectives of this Directive.

3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a

significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate

assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of

the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national

authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of

the site concerned and, if appropriate, after having obtained the opinion of the general public.

4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan

or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social

or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall

coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.

Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which

may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for

the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.”

158. The Habitats Directive and the Birds Directive are implemented in domestic law by Part XAB of the PDA 2000 which applies to any

“European Site”, which includes SACs and SPAs (s. 177R(1)). Under s. 177S, “competent authorities” must:-

“take appropriate steps to avoid in a European Site the deterioration of natural habitats and the habitats of species as

well as the disturbance of the species for which the site has been designated, insofar as such disturbance could be

significant in relation to the objectives of the Habitats Directive”.

In the context of the proposed development, “competent authority” includes in the first instance Laois County Council and in relation

to the impugned decision, the Board.

159. Section 177T(1) provides:-

“In this part-

…

(b) A Natura impact statement means a statement, for the purposes of Article 6 of the Habitats Directive, of the

implications of a proposed development, on its own or in combination with other plans or projects, for one or more than

one European site, in view of the conservation objectives of the site or sites.

(2) Without prejudice to the generality of subsection (1),…a Natura impact statement…shall include a report of a scientific

examination of evidence and data, carried out by competent persons to identify and classify any implications for one or

more than one European site in view of the conservation objectives of the site or sites.”

160. Under s. 177U, there must be a preliminary “screening for appropriate assessment” of a proposed development to assess “in view

of best scientific knowledge, if that….proposed development, individually or in combination with another plan or project is likely to

have a significant effect on the European site”.

161. Where screening indicates that an AA is required, s. 177V applies which, in so far as is relevant, provides:-

(1) An appropriate assessment carried out under this Part shall include a determination by the competent authority under

Article 6.3 of the Habitats Directive as to whether or not a draft…proposed development would adversely affect the

integrity of a European site and an appropriate assessment shall be carried out by the competent authority, in each case

where it has made a determination under section 177U(4) that an appropriate assessment is required…

(2) In carrying out an appropriate assessment under subsection (1) the competent authority shall take into account each

of the following matters:

(a) the…Natura impact statement...;

(b) any supplemental information furnished in relation to any such…statement;

(c) if appropriate, any additional information sought by the authority and furnished by the applicant in relation to a

Natura impact statement;

…

(e) any information or advice obtained by the competent authority;

(f) if appropriate, any written submissions or observations made to the competent authority in relation to the

application for consent for proposed development;

(g) any other relevant information.

(3) Notwithstanding any other provision of this Act, or, as appropriate, the Act of 2001, or the Roads Acts 1993 to 2007

and save as otherwise provided for in sections 177X, 177Y, 177AB and 177AC, a competent authority...give consent for

proposed development only after having determined that the…proposed development shall not adversely affect the

integrity of a European Site.”

Background Facts Relating to Appropriate Assessment

162. Against this legislative background RPS on behalf of Coillte undertook screening and established that there were no Natura 2000

sites within the proposed development site but that the proposed development might have significant effects on two Natura 2000

sites, namely the River Barrow and River Nore SAC and the River Nore SPA. Accordingly, they carried out a NIS and an AA. The

applicants’ claims related principally to inadequate assessment of the potential impact of the proposed development on the drainage

of water from the proposed site, particularly during the construction phase and the adverse impact that this could have on the

Habitat of the FPM in the River Barrow and River Nore SAC, lying downstream of the proposed development.

163. The National Parks and Wildlife Service (NPWS) published conservation objectives in respect of the River Barrow and River Nore

SAC (“the Guidelines”). In their introduction they note that:-

“The overall aim of the Habitats Directive is to maintain or restore the favourable conservation status of habitats and

species of community interest”.

164. The Guidelines assert that when following these objectives “it is essential that the relevant backing/supporting documents are

consulted, particularly where instructed in the targets or notes for a particular attribute.” In the list of “qualifying interests” the

species listed include FPM Margaritifera Margaritifera” (status under review) and the Nore Freshwater Pearl Mussel Margartitifera

Durrovensis (“NFPM”) (which remains a qualifying species). The supporting documentation listed includes some 5 reports relating to

freshwater mussels, 2 of which are particular to the NFPM and 4 of which are authored by biologist Dr. E. A. Moorkens whom the

parties agreed was an expert in relation to the FPM/NFPM.

165. It should be noted at the outset that this is the only site in the world for this hard water form of the NFPM. Its population was

estimated by Dr Moorkens in 2009 to be 300 adult individuals, with no evidence of breeding since 1970. It is limited to a stretch of the

River Nore of some 15.5 km in the vicinity of Ballyragget. The NPWS target is to restore the population to 5000 adults by breeding and

introducing juveniles and young mussels and to reduce the decline of the adult population. Maintenance of sufficient juvenile

salmonids and habitats for same is necessary as they are required for the juvenile cycle of the NFPM’s lifetime. There are however

serious issues relating to the quality of the NFPM habitat due to less than ideal sub stratum sedimentation. Restoration of an

appropriate hydrological regime to deal with the sub stratum is therefore an NPWS target.

166. RPS made a detailed examination in their NIS of the potential for alterations to the NFPM habitat which could be caused by the

development. RPS also outlined the “Freshwater Pearl Mussel Sub-Basin Management Plan” in which it is noted that the objectives and

measures contained in same must be considered by the developer in moving the project forward.

167. In respect of the FPM and NFPM, Table 4.4 in the NIS entitled “Summary of Impacts on the Qualifying Features of the River

Barrow and River Nore SAC” notes that the species are “[v]ery highly sensitive to pollution”. RPS concluded that no direct effects

were recorded in the vicinity of the proposed wind farm development and possible bridge works on the species. As to indirect effects,

they concluded that these “may occur during proposed wind farm development and possible bridge works…”

168. Due to this possible indirect effect on the FPM and the NFPM, RPS detail in s. 4.6 of the NIS an array of mitigation measures to

be implemented for the reduction and prevention of suspended solid pollution so that discharges to watercourses shall not exceed

35mg/l of total suspended solids. The Court notes that at the appeal stage this was reduced to 25mg/l. Due to these measures, RPS

concluded that the development would not have a significant effect either individually or in combination with other plans or projects

on the conservation objectives of the River Barrow and River Nore SAC or the River Nore SPA.

169. The applicants pointed out that there is no reference in the NIS or the Board’s decision to any of the reports or research of Dr.

Moorkens listed in the Guidelines’ bibliography, notwithstanding that the NPWS in the Guidelines stated that it is essential to have

regard to this relevant background/supporting documentation. They also noted that there was no reference to any documentation

referring to the FPM.

170. The Court notes that prior to completing the NIS, Coillte/RPS undertook written consultation with IFI and the NPWS.

171. In response to the planning application, by observation dated 1st October, 2013 the DAHG expressed various concerns. With

respect to the mussels, the DAHG reasoned that impacts on the NFPM were not adequately assessed in the NIS, particularly in

relation to impacts associated with the proposed additional clear-felling of trees and bridge works. It noted that the proposed

mitigation measures had not been assessed to determine if they were adequate and that the cumulative effect of the development

with other projects on the NFPM had not been considered.

172. The Court notes that these observations were relatively limited in nature. The general observation that the impacts of the

development on the NFPM had not been adequately assessed appear alongside 4 other concerns mentioned in the observation,

namely the clear felling of trees, bridge works, the 35mg/l total suspended solids limitation and cumulative impacts in association with

other developments.

173. The Planners Report, which took into account the various observations from officers in Laois County Council agreed with the

DAHG observation that the NIS was inadequate in relation to impacts of the proposal on the FPM.

174. The planner noted that the grid connection, in respect of which there was no proposal in the application, was an integral part

when considering the impacts of the proposed development under the Habitats Directive. However, for the reasons previously

indicated in this judgment the Court cannot have regard to any complaint by the applicants referable to the grid connection because

this was not the subject of any ground in respect of which leave was granted.

175. In refusing permission, the planning authority in its decision dated 2nd October, 2013 stated that it was not satisfied on the

basis of the AA and information contained in the EIS and NIS that proper consideration had been given to the environmental effects

of the development or that the integrity of the SAC and SPA would not be adversely affected by the development.

176. Before passing to the appeal it should be noted that Dr. Moorkens was not an observer in respect of the planning application to

Laois County Council, nor were her services retained by any party and the only reference in the NIS was in the context of the NPWS

conservation objectives.

177. At the appeal stage, Coillte again engaged RPS to prepare their appeal. In s. 4.4.3 they deal specifically with the River Barrow

and Nore SAC and the SPA, emphasising at the outset that protection of the FPM population was one of the “primary considerations

in devising and assessing the layout and extent of the wind farm proposed by Coillte in the first instance”. It is asserted that the

application incorporates best practice mitigation measures agreed in consultation with IFI. It is accepted that, notwithstanding the

distance between possible future affected watercourses and the SAC, indirect impacts on the NFPM are possible. Reliance is placed

however on the mitigation measures outlined in s. 4.6 of the NIS to alleviate the impacts. At p. 104 of the appeal document, para. 22,

it is stated “[s]cientific literature exists which states that the distance at which freshwater pearl mussel populations may be at risk

from site disturbing forest operations is up to 6km. The nearest population of mussel from the Cullenagh site is known to be 12km.” A

footnote to this indicates that the scientific literature relied on by RPS was a 1997 study “of the effects of stream hydrology and

water quality in forested catchments on fish and invertebrates”.

178. The applicants point out that this particular literature is not referenced in the Guidelines’ bibliography in their conservation

objectives for the River Barrow and River Nore SAC. They further point out that. RPS do not refer to any of Dr. Moorkens publications

in the appeal document particular to the high water quality required by populations of FPM.

179. The Court notes here that the distance of the proposed development from the known populations of FPM, while a factor relied

upon by RPS in their submission, is not critical in that they rely primarily on the mitigation measures which they submit would be

sufficiently robust. They go on to rely on the fact that IFI raised no objection to the proposed development. They then addressed the

DAHG’s concerns outlined above relating to tree felling, bridge works and possible cumulative impacts in conjunction with other

projects.

180. In terms of ‘best scientific knowledge’ there is a passage, which the Court regards as significant, concerning the NFPM within s.

1.2 of Appendix C of the appeal document lodged by Coillte which states:-

“The population continues to age, and as older mussels die, they are not replaced. The conclusion from studies of the

Nore is that the single extant M. durrovensis population in the River Nore is un-viable and on the verge of extinction.

Expert opinion has indicated that the current 300 adult mussels cannot sustain M. Durrovensis into the future and that

significant efforts are needed to increase the size of the population. Assisted breeding has been identified as the only

method by which the current population of 300 adult mussels can be increased in the medium to long term. As a result,

adult mussels have been taken into captivity in an attempt to breed glochidia. A programme was set up in 2005, funded

by the National Roads Authority and NPWS. In 2008 and 2009, female mussels in captivity successfully released live

glochida, a number of which attached to the gills of host fish. Juvenile mussels did not survive in the facility, so the

location was moved in 2009, and currently live juvenile mussels have completed their first growing season. It is hoped

that juvenile mussels will be translocated to suitable habitat within the Nore catchment, or held in captivity until

conditions improve in the habitat. The objective is to create at least two viable, self-sustaining populations of M.

Durrovensis from mussels bred in captivity, each population totalling a minimum of 5,000 mussels. There is considerable

urgency to identify potential receptor sites and to return them to favourable habitat condition and water quality”.

181. As this document formed part of the appeal, the Court observes that this information was before the Board at the date of the

impugned decision. It also appears that the information quoted above came to be included in this documentation on 28.1.2011 and

was therefore of recent origin. This has relevance to the obligation on the decision maker to consider the best available scientific

knowledge at the date of the decision, an aspect that will be discussed later in this judgment.

182. Addressing the concerns of the DAHG with regard to the adequacy of mitigation measures to be implemented in relation to the

NFPM, RPS on behalf of Coillte firstly proposed a measurable limit of 25mg/l in respect of total suspended solids. Secondly, they stated

that they would not exceed the current levels of total suspended solids as established through monitoring/survey over the summer

and winter seasons. Measures were also outlined as to how these limits would be observed. The Court was informed at the date of

hearing that such monitoring was being undertaken but had not yet been completed. The overall significance of these proposals is

that Coillte was committing, at worst, to maintaining the status quo in terms of suspended solids in the water draining from the

development site.

183. At pp. 120-121 of the appeal document, RPS address the planner’s criticisms of the NIS and repeat the material relied upon in

response to the DAHG observations.

184. In addition to the appeal document, Coillte, in response to certain observations at the appeal stage, lodged 2 further responses

with the Board. One of these was a response to various observations of the second named applicant and other objectors who are

members of the first named applicant, including Tracey and Steven Hood. The Hood’s observations concerned inter alia suspended

solids methodology, flooding hydrology, the FPM, river flows and siltation. The detailed response of RPS (whom it will be recalled

availed of hydrological expertise) on behalf of Coillte runs for some 21 pages and addresses their hydrological concerns.

185. The Court notes certain points of relevance:-

• That questions of hydrology were dealt with in the EIS.

• That the method of measuring suspended solids is not, as suggested, “unproven and invalid”, nor is it true that the level

of “25mg/l is purely arbitrary and meaningless”.

• RPS responded that “turbidity is a measurement of water clarity where solids in the water obstruct the transmittance of

light through the sample. Turbidity is an important water quality parameter that can indicate the presence of dispersed

suspended solids, algae and other micro organisms, organic material and other minute particles.” They stated that “there

is a strong correlation between turbidity and total suspended solids and both parameters can be measured together with

a total suspended solids probe, which is used in monitoring water quality around the world”. RPS give reasons for

disregarding a survey referred to by the Hood’s in their submission and give examples of where continuous monitoring of

water quality with turbidity is used in 2 infrastructure projects in FPM catchments (Donegal and Connemara). They also

refer to the appeal document in which it is stated that “such monitoring shall be carried out in line with Irish Freshwater

Pearl Mussel Regulations and in particular the fourth schedule of S.I. 296 2009 to ensure that water quality in the

Freshwater Pearl Mussel habitat is maintained at levels which support a fully functioning recruiting population”.

• They seek support for the 25mg/l level on the basis that this was the level taken from current IFI Guidance 2007.

• With regard to the suggestion that run off from impervious areas such as hard stands would impact the hydrological

balance, RPS stated that there would be no net change to the hydrological balance from the works as all catchment

basins would be maintained and surface water management for the site would include attenuation for all proposed

impervious areas to existing run off. This would be achieved through the use of throttle pipes to limit discharge to existing

run off rates to the 1:100 year flood event. Accordingly, RPS said that there would be no change in flood risk.

186. The second response related to observations sent by Ms. Uí Fhátharta on behalf of Laois County Council in a submission dated

25th November, 2013 with attached submissions.

187. DAHG did not make any observation or submission to the Board in respect of the appeal. The respondent and Coillte placed

considerable reliance on this, having regard to the fact that the DAHG, through the agency of the NPWS, is responsible for the

conservation objectives under the Habitats Directive relating to the NFPM. They argued that the Board was entitled to take the view

that the NPWS, in light of the mitigation measures advanced in the appeal document, no longer had concerns about adverse impact

from the project on the integrity of the SAC. It is noted that IFI, a statutory consultee, also did not lodge any observation at the

appeal stage.

188. The Board’s Inspector’s Report considers all of the documentation including the EIS, NIS, appeal documentation, observations

and responses. There is also a specific section (14.7) concerning AA.

189. The inspector noted that an indirect relationship arises between the development and the Natura 2000 sites. Significant threats

may arise on the sites’ conservation objectives and qualifying interests pertaining to habitat fragmentation, water provision,

obstruction to water movement including fish movement and disturbance to species associated in the Annexes.

190. At para. 14.7.7 the report addresses particularly the FPM and NFPM and notes that:-

“…sedimentation poses the biggest threat to the qualifying interest, the Freshwater Pearl Mussel and Nore Freshwater

Pearl Mussel. The conservation objectives and notes of relevance to these species indicate that significant sedimentation

has been recorded during all recent mussel monitoring surveys. Recruitment of juvenile mussels is being prevented by the

poor quality of the river substrate. I note the publication by the NPWS “Freshwater Pearl Mussel Assessment”, in June

2013 and the map which indicates the distribution of the mussel. Text provided by the NPWS indicates that “freshwater

pearl mussel is a globally threatened, long-lived and extremely sensitive species that can be impacted by many forms of

pollution, particularly sediment and nutrient pollution and by hydrological and morphological changes, which may arise from

developments, activities or changes in any part of the catchment. Accordingly, conservation and protection of the

species must occur at the catchment level. Owing to the likelihood that the development or activity may occur some

distance from the impact, it is the assessment and quantification of risk that requires the greatest attention during the

ecological or environmental impact assessment.”

191. After considering the information before her, the inspector concluded that the proposal would not have a significant impact on

the FPM or the NFPM.

192. The Court notes that the inspector’s view is not solely based on the geographical separation between the proposed development

site and the nearest population of mussels but is broadly based on other considerations arising on the evidence before her and before

the Board, including the mitigation measures proposed. It will also be recalled that her recommendation, which was to refuse

permission for the proposed development was based on visual impact, shadow flicker, noise and the extent of work required on haul

routes which she felt had not been adequately addressed – and not in any reasons concerned with the AA or any suggested adverse

effect on the integrity of the SAC.

193. During the screening exercise carried out by RPS, it was decided that the proposed development might have significant indirect

effects on the River Nore SPA and/or the Kingfisher. However, the AA carried out by RPS confirmed that the development would not

have a significant effect either individually or in combination with other plans or projects on the conservation objectives of the River

Nore SPA. The applicants did not in written or oral legal submissions pursue any contention that the Board’s decision should be

quashed based on the inadequacy of information with regard to the River Nore SPA, potential effects on the habitat or species or that

the AA carried out in relation to the River Nore SPA by the Board was inadequate.

194. The screening exercise also concluded that there would be no impact by the proposed development on the Slieve Bloom

Mountain SPA or the Hen Harrier and no indirect impact, or impact in combination with any other project, as the development site was

not a suitable habitat for the Hen Harrier and it was outside the feeding territory of the species. While the inspector noted observers’

concerns about the impact on the Hen Harrier, she followed similar reasoning and came to the same conclusion as RPS.

The Board’s Decision on Appropriate Assessment

195. As previously indicated in this judgment, the Board, in coming to its decision, outlined the matters listed (a)-(i) to which it had

regard. These included “(h) the range of mitigation measures set out in the documentation received,” and “(i) the submissions made in

connection with the planning application and the appeal, and the report of the Inspector.”

196. The Board was satisfied that there was sufficient information before it to undertake an AA. At the screening for an AA stage of

the exercise, the Board concluded that the development would not have any likely significant effect on the Slieve Bloom Mountains

SPA. At the AA stage, which considered the River Barrow and River Nore SAC and the River Nore SPA, the Board concluded that

“[s]ubject to the implementation of the identified mitigation measures,…the proposed development, by itself or in combination with

other plans or projects…would not adversely affect the integrity of the River Barrow and River Nore [SAC] or the River Nore [SPA], in

view of the conservation objectives of these sites.” In coming to this conclusion the Board had regard to a number of matters which

it then listed.

197. A number of the conditions imposed by the Board are specifically referable to mitigation measures in respect of the River Barrow

and River Nore SAC and the potential for adverse affect on the integrity of the FPM (and in particular the NFPM) habitat sites. These

conditions are numbers 4, 11, 13, 16 and 17.

198. The effect of condition 4 would appear to be to import into the permission an automatic requirement that Coillte comply with all

mitigation measures identified in the EIS, the NIS and the appeal documentation. This would include those parts of the appeal

document relating to the lower limit on suspended solids in water discharged from the site of 25mg/l and relating to winter and

summer monitoring of the existing position with regard to suspended solids and the commitment not to exceed current levels during

the construction phase or subsequently during the operational phase of the proposed development.

199. The Court also notes condition 17(k) which requires that water run off during construction is to be controlled such that no silt or

other pollutants enter watercourses. This sets an even stricter safeguard in respect of discharges to watercourses during the

construction phase. Although this will not apply during the operational phase, it was accepted in argument on behalf of the applicants

that their challenge to the validity of the Board’s AA decision related to their fears at the construction phase.

The Applicants’ Submissions

200. In arguing that there was no AA, the applicants relied firmly on the requirements for an AA as set out in Article 6(3) of the

Habitats Directive and as interpreted in the CJEU case law summarised by Finlay Geoghegan J in the Kelly case where she stated at

para.s 39-40:-

“Section 177V(1) must be construed so as to give effect to Article 6(3) of the Habitats Directive, and hence, an

appropriate assessment carried out under the section must meet the requirements of Article 6(3) as set out in the CJEU

case law. If an appropriate assessment is to comply with the criteria set out by the CJEU in the cases referred to, then it

must, in my judgment, include an examination, analysis, evaluation, findings, conclusions and a final determination.

It must be recalled that the appropriate assessment, or a stage two assessment, will only arise where, in the stage one

screening process, it has been determined (or it has been implicitly accepted) that the proposed development meets the

threshold of being considered likely to have significant effects on a European site. Where that is the position, then, in

accordance with the preceding case law, the appropriate assessment to be lawfully conducted in summary:

(i) Must identify, in the light of the best scientific knowledge in the field, all aspects of the development project

which can, by itself or in combination with other plans or projects, affect the European site in the light of its

conservation objectives. This clearly requires both examination and analysis.

(ii) Must contain complete, precise and definitive findings and conclusions and may not have lacunae or gaps. The

requirement for precise and definitive findings and conclusions appears to require analysis, evaluation and decisions.

Further, the reference to findings and conclusions in a scientific context requires both findings following analysis and

conclusions following an evaluation each in the light of the best scientific knowledge in the field.

(iii) May only include a determination that the proposed development will not adversely affect the integrity of any

relevant European site where upon the basis of complete, precise and definitive findings and conclusions made the

Board decides that no reasonable scientific doubt remains as to the absence of the identified potential effects.”

201. The applicants argued that Article 6(3) goes to jurisdiction. Unless the Board has before it all appropriate information allowing it

to identify, in the light of best scientific knowledge, all aspects of the development allowing it to make complete, precise and

definitive findings and conclusions, it cannot be in a position to make an AA decision. It was argued that the analysis and evaluation

cannot take place if there are lacunae in the information necessary for the decision.

202. The applicants asserted that there were significant lacunae in the information before the Board in 2 particular respects. First,

the mitigation measures in respect of surface water draining from the development site or passing through watercourses or streams

outside the site but impacted by the haul routes, were too nonspecific. Second, in so far as the Board’s decision left over elaboration

and detail of these mitigation measures to further agreement between Coillte and the local authority, IFI, the NPWS or other parties,

in respect of which there would be no public consultation or participation, there would be no possibility for the examination, analysis

and evaluation under Article 6(3). It would not be possible to establish, in advance of the consent to the development whether such

mitigation measures would protect the integrity of the River Barrow and River Nore SAC.

203. The applicants also argued that the AA had to be undertaken and the decision made in light of the conservation objective of

restoring the NFPM and its habitats downstream of the proposed development. It was argued that it was not sufficient for a decision

to merely preserve the integrity of a European Site – it must in this instance allow conditions to exist which would facilitate the

improvement of the water quality and habitat, with specific limit values in respect of solids or other matter in suspension established

after considering the best scientific evidence in the field.

204. The applicants also argued that in reaching its decision, the Board failed to have regard to the best scientific knowledge in the

field.

Dr. Moorkens’ Evidence and the ‘Best Scientific Knowledge’

205. In support of these arguments the applicants sought to rely on the evidence of Dr. Moorkens, Environmental Scientist, set out in

an affidavit which she swore on 23rd January, 2015. The respondent and Coillte both objected to the admissibility of this evidence

primarily on the basis that it included new evidence and opinion evidence not before the Board at the time of the impugned decision.

Objection was also made on the basis that some of the opinion expressed related to hydrological matters not within Dr. Moorkens’

particular expertise and on the basis that the affidavit was filed very late in the day. The parties agreed that the Court should receive

and consider the evidence in this affidavit de bene esse and in its judgment determine its admissibility.

206. From her affidavit it is apparent that Dr. Moorkens is highly educated in the field of natural sciences and environmental science.

Her masters and doctorate specialised in “Molluscan conservation” and her species speciality was the FPM and the NFPM. It was clear

that she has particular national and international experience and expertise in relation to FPMs and it was not disputed that she is the

principle Irish expert in respect of the FPM and probably the world expert in respect of the NFPM. She regularly publishes works and

lectures on these topics and has worked previously with RPS and separately produced guidance documents for the wind farm and

forestry sectors on her area of expertise. One of her exhibits was an article which she co-authored “Assessing Near-Bed Velocity in a

Recruiting Population of the Endangered Freshwater Pearl Mussel (Margaritifera Margaritifera) in Ireland.” This article resulted from a

short study in 2013 of a sustainably recruiting FPM population in a west of Ireland River.

207. A number of matters should be noted. First, the article did not relate to the NFPM, but only FPM, the conservation status of

which in the River Nore SAC is under review. Secondly, it was not published until September 2014 and therefore post-dated the

impugned decision. Thirdly, and in so far as the conclusion and discussion in the article might equally apply to the NFPM, it would

seem that the sensitivity of the freshwater mussels to fine sediment infiltration or higher levels of suspended solids is something that

was already mentioned in the NPWS conservation objectives and therefore before the Board.

208. Returning to the content of Dr. Moorkens affidavit, to a considerable extent this does not present any new information that was

not already before the Board. In other respects the affidavit recites the legal background and basis for AAs which is not in dispute.

She refers to the Laois County Council Development Plan which refers to “foster[ing] an improvement in the conservation status” of

the NFPM. She suggests that there were lacunae in Coillte’s submission which “made no effort to establish the catchment

management changes needed in the proposed development area in order to be compatible with a Nore Frehwater Pearl Mussel

population with the potential to improve to favourable condition.” While Dr. Moorkens placed reliance on the DAHG submission, it

seems to the Court that their submission does not go so far as to require catchment management changes prior to the granting of

permission. Dr. Moorkens fails to note that the DAHG did not see fit to make any submission or observation in response to Coillte’s

appeal to the Board.

209. In para. 18, Dr. Moorkens is critical of the fact that the inspector in her report does not mention seeking or obtaining expertise

on the species. While this is so, the Court found it surprising that none of the parties involved in the planning application or appeal,

including observers and Laois County Council, consulted with or engaged Dr. Moorkens, notwithstanding that she is the known expert

on FPM and in particular the NFPM. It would of course also have been open to Dr. Moorkens to have made submissions to the planning

authority or the Board as an observer. No evidence was presented or adduced to explain why Dr Moorkens never became involved in

the process.

210. The Board had information from 2011 Overview of Freshwater Pearl Mussel in Catchment’ being part of ‘Forestry Development’,

‘Forestry and Freshwater Pearl Mussel Requirement Form 1.9 Application details Nore Catchment’, 28th January 2011. before it

indicating the need for assisted breeding of the NFPM and an ongoing breeding program from 2009 with the hope that juvenile mussels

“will be translocated to suitable habitats within the Nore catchment”, so it is extraordinary that the actual introduction of juvenile

NFPM into the River Nore was taking place in July, 2014 only weeks after the Board’s decision (13th June, 2014). Presumably this re-

introduction program had been in gestation for a number of years with heightened preparations in place shortly prior to the Board’s

decision. It does not appear that any party saw fit to bring to the Board’s attention to the advanced state of this re-introduction

program.

211. The Court also notes that in criticising the 25mg/l total suspended solids as inadequate, Dr. Moorkens fails to address the further

mitigation measures considered by the Board and ultimately the subject matter of conditions in the Board’s decision. In the view of

the Court, this greatly undermines the weight that might otherwise be attached to her opinion because potential adverse impacts

cannot be fully assessed without considering the suite of mitigation measures. The scientific expertise most relevant to the design

and efficacy of the mitigation measures was that of hydrology. RPS in preparing the EIS, the NIS, the appeal document and responses

to observers, had recourse to hydrological expertise and relied on same in the preparation of the proposed mitigation measures.

212. Accordingly, the Court takes into account Dr. Moorkens’ evidence on affidavit in so far as it helpfully sets out and supports the

legal case for asserting that the AA was flawed because it assessed the project with reference to the status quo and the

deteriorated conditions of the catchment rather than from the point of view of the conservation objective of restoration and support

of improved habitat conditions which the applicants say is required under Article 6(3) of the Habitats Directive. In so far as the

affidavit contains new evidence that was not before the Board, the Court is compelled to disregard such evidence. In so far as it

contains opinion evidence that does not on its face take into account the detailed mitigation measures proposed by RPS on behalf of

Coillte and incorporated into the impugned decision by conditions and other conditions imposed by the Board, the Court does not

consider such evidence helpful.

213. The respondent and Coillte also submitted that the planning authority/the Board cannot be expected to source and contract

directly with the most prominent experts in the field when undertaking AA. They say this would be impracticable, perhaps impossible. I

accept this as correct. The obligation identified by Finlay Geoghegan J in Kelly is for the AA “to identify, in the light of the best

scientific knowledge in the field” all aspects of the development that may affect the European site. Reference to written materials or

secondary sources repeating or distilling the “best scientific knowledge” is acceptable provided these sources are such as to enable

examination and analysis by the decision maker of the effects of the development site, including mitigation measures.

Submissions of the Respondent and Coillte

214. The respondent made written and oral submissions. Coillte adopted these submissions and made further submissions. They

submitted that the AA was adequate and complied with Article 6 of the Habitats Directive and jurisprudence of the CJEU.

215. In particular, in relation to the NFPM and FPM and the possible adverse effect on them and their habitat downstream of the

development site, the respondent and Coillte relied on the suite of mitigation measures proposed in the EIS/NIS, as modified by the

appeal document. They also relied upon the further measures incorporated by the Board in its decision and the issues to be the

subject matter of agreement between the developer and Laois County Council and others particularly prior to the construction stage.

216. In terms of the “best scientific knowledge”, they contested the admissibility of and the weight to be attributed to Dr. Moorkens’

evidence and I have dealt with this above. They relied on the fact that the relevant mitigation measures are hydrological in nature

and that RPS in presenting the NIS and appeal document either had or engaged the appropriate expertise to design and present such

measures.

217. It was argued that what Article 6 requires is an assessment that concludes that the proposed development will either have a

neutral or, alternatively, a positive effect on the species or habitat and that it does not require that the proposed development will

have the effect of restoring a habitat already damaged or at risk. The respondent placed particular reliance on the opinion of

Advocate General Sharpston in Briels and Others v. Minister van Infrastructuur en Milieu (Case C-521/12) to support 2 propositions:-

• First, that mitigation measures form part of the plan or project which effectively minimise its impact and must be taken

into account under the AA pursuant to Article 6(3);

• Secondly, that a mitigation measure is one that lessens the negative effect of a project with the aim of ensuring, if

possible, that the integrity of the site is not adversely affected while some significant and/or transient effects might not

be totally eliminated.

218. As to any suggestion that the Board had any obligation to contact Dr. Moorkens to avail of her expertise, it was pointed out that

most of her materials as referred to in the NPWS conservation objectives were unpublished. This was not an issue canvassed by the

applicants and was not raised in their Statement of Grounds or written submissions. It had been first mentioned in the course of the

hearing and was not part of the case made.

219. The respondent and Coillte also referred to the limited extent to which Laois County Council officers and the Planners Report

raised inadequacies in the AA in the context of the NFPM or FPM – with their submissions effectively adding nothing to what the DAHG

had submitted in its letter. It was pointed out that the appeal documentation addressed all matters in observations made at the

appeal stage.

220. With regard to aspects of the mitigation measures left over to be agreed under the conditions, the respondent and Coillte argued

that these were matters of detail. Once agreed they would be on the planners file and therefore available to the public or available

under a Freedom of Information request. Mr. McDonnell SC on behalf of Coillte drew on the authority of Boland v. An Bord Pleanála

[1996] 3 IR 435 which set out criteria to which the Board was entitled to have regard in deciding whether to impose conditions

leaving a matter to be agreed between the developer and the planning authority.

221. Although that case related to a planning decision that pre-dated the Habitats Directive, he submitted that it applied by analogy

and entitled the Board to leave to further agreement matters which were essentially technical or matters of detail where the Board

already has before it sufficient information and detail to make a principled decision under Article 6(3). It was therefore submitted that

it was entirely appropriate to insert condition 17(k) – albeit that it was a standard condition. Accordingly, the respondent and Coillte

rejected the argument that the Board had in some way delegated its AA function to further agreement.

Discussion

222. In the context of the applicants’ claim that there was an obligation on the Board not to grant permission in respect of the

proposed development unless satisfied that it had the effect of restoring the conservation objectives of the River Barrow and River

Nore SAC, it is necessary to make some observations on Article 6(1)(2) and (3) the Habitats Directive quoted at para. 157 above (it

is common case that Article 6(4) has no application to this case).

223. Article 6(1) refers to “necessary conservation measures” to be established by “appropriate management plans” and “appropriate

statutory administrative or contractual measures”. It does not refer to ‘restoration’ but clearly the management plans or other

measures may include restoration of a habitat or species as an objective. In the instant case, the appropriate management

plans/measures are those put in place by the DAHG and Laois County Council in its development plan and other plans referred to in

the EIS/NIS. It also encompasses The European Communities Environmental Objectives (Freshwater Pearl Mussel) Regulations 2009

(S.I. No.296 of 2009), setting out environmental quality objectives for the habitats of FPM populations across the State as identified

in the first schedule. This S.I. requires the production of sub-basin management plans with programs of measures to achieve each of

these objectives and it sets out the duties of public authorities in respect of those plans and programs. This S.I. also applies to the

NFPM. Pursuant to that Instrument, the relevant sub-basin management plan was adopted. It is noted that Regulation 9 provides that

it:-

“[s]hall be the duty of a public authority listed in the Second Schedule to these Regulations to take such steps as are

necessary and appropriate to the discharge of its functions to implement the measures identified in a sub-basin

management plan.”

Under the second schedule this applied to all “relevant local authorities”, which would include Laois County Council, An Bord Pleanála

and also Coillte Teoranta. Also listed is “the Minister for Environment, Heritage and Local Government”. Accordingly, there is a wide

range of responsibility for the conservation of the FPM/NFPM habitat that clearly does not stop at the impugned decision.

224. Article 6(2) enshrines the obligation to “avoid…the deterioration” of the habitat and the disturbance of the species “insofar as

such disturbance could be significant in relation to the objectives to the Directive.” The deliberate use of the word “deterioration”

indicates that the obligation on member states is a negative one, namely to take appropriate steps to avoid deterioration. It does not

place on member states the legal obligation to take positive steps to restore a habitat to a favourable conservation status where

historically that status was/is unfavourable or at risk. That would be an obligation of an entirely different magnitude that would

potentially place a considerable burden – not least financial – on member states. If restoration was intended to be a binding obligation

it would have been stated in clear and unequivocal terms and would probably have been stated subject to qualifications, reservations

and exceptions. Indeed it would be a radical measure that would require extensive consultation and discussion at all levels within the

EU and might warrant separate legislation.

225. Secondly, the use of the phrase “insofar as disturbance could be significant in relation to the objectives of this Directive” is

important because it shows that the EU does not take an absolutist approach but will tolerate insignificant disturbance of a species.

Implicit from this wording is the concept that appropriate steps may not be necessary if the disturbance is minimal or negligible.

226. Article 6(3) relates directly to AA and is therefore most relevant. It relates to any plan or project likely to have a significant

effect on a site, which can only be approved if “it will not adversely affect the integrity of the site”. There is no requirement in Article

6(3) that consent should be refused if a member state’s conservation objective for a habitat or species is restoration and the

particular project being considered does not have the effect of restoration or some beneficial effect.

227. The interpretation placed on Article 6(3) of the Habitats Directive by the CJEU in Sweetman & Ors v. An Board Pleanála (Case C-

258/11) is also instructive as it had to consider the criteria to be applied when assessing the likelihood that a plan or project will

adversely affect the integrity of a site. The CJEU stated at para. 32:-

“[i]n appraising the scope of the expression ‘adversely affect the integrity of the site’ in its overall context, it should be

made clear that…the provisions of Article 6 of the Habitats Directive must be construed as a coherent whole in the light

of the conservation objectives pursued by the directive. Indeed, Article 6(2) and Article 6(3) are designed to ensure the

same level of protection of natural habitats and habitats of species...whilst Article 6(4) merely derogates from the second

sentence of Article 6(3).”

228. Ms. Butler SC on behalf of the respondent referred the Court to the Briels case Briels and Others v. Minister van Infrastructuur

en Mileau (Case C-521/12). The CJEU decided the reference on 15th May, 2014 agreeing with the final conclusion of Advocate

General Sharpston but did not discuss these issues to the same extent as the Advocate General. and the Opinion of Advocate General

Sharpston which the Court finds to be helpful on the issues of restoration (or “positive effect”) and the relevance of mitigation

measures. That case concerned a reference from a Dutch court concerning a challenge to a road widening project in the Netherlands

which affected a SAC habitat known as the Molinia Meadows. The Ministerial Order directed certain measures with a view to ensuring

the creation of new meadows elsewhere to replace or augment those affected. The referring party wished to know, essentially,

whether the integrity of a site is adversely affected within the meaning of the Habitats Directive if the project includes the creation

of an area of that natural habitat type of equal or greater size within that site and if so whether that creation is to be regarded as a

compensatory measure within the meaning of the Directive. The Advocate General in her assessment considered the term “mitigation

measure”, noting that it was not a term used in the legislation or defined in case law. At para.s 30-33 she stated:-

“It is generally agreed among environmental specialists, and it appeared to be common ground among those presenting

argument at the hearing, that plans or projects likely to have an effect on the environment should be assessed in the

light of a ‘mitigation hierarchy’. The content of that hierarchy may be expressed in greater or lesser detail and in slightly

varying forms but its essence may be stated thus: ‘compensation for residual harm is a last step and comes after

consideration of how harm can be avoided in the first place and then, if that is not possible, how harm can be minimised

through mitigation’. The three major steps or levels are thus, in decreasing order of preference: avoid, mitigate,

compensate.

A comparable hierarchy can be seen in Article 6 of the Habitats Directive, although there is no mention of mitigation as

such. Article 6(1) requires the establishment of conservation measures, namely, in accordance with Articles 1(a), 2(2)

and 3(1), those measures necessary ‘to maintain or restore’ the natural habitats ‘at a favourable status’. That level is

thus rather higher than simple avoidance, in that it involves active maintenance or even improvement of the quality or

extent of habitats. Next, Article 6(2) requires the taking of appropriate steps to avoid any deterioration or disturbance.

With a view to ensuring the same level of protection, Article 6(3) allows plans or projects to be approved only if they ‘will

not adversely affect the integrity of the site concerned’. Finally, Article 6(4) requires all necessary compensatory

measures to be taken whenever a plan or project, even though it does adversely affect the integrity of the site, must be

carried out for imperative reasons of overriding public interest and there are no alternative solutions.

Thus, although Article 6 of the Habitats Directive does not specifically mention mitigation measures, it cannot reasonably

be argued that there is no place for them within its structure. I agree with all those who have submitted observations,

and with Advocate General Kokott in the passages I have cited above, that measures which form part of a plan or project

and which effectively minimise its impact may be taken into account when assessing, in accordance with Article 6(3),

whether that plan or project adversely affects the integrity of a site. It seems clear, however, that Article 6(1) requires

active conservation management, rather than a mere absence of negative impact, and that Article 6(4) concerns

situations in which whatever measures can be implemented in order to reduce an adverse impact have proved insufficient

in the context of the assessment under Article 6(3).

All those who have submitted observations agree, therefore, that ‘mitigation measure’ designates a relevant concept for

the purposes of Article 6(3) of the Habitats Directive, which is different from that of ‘compensation measure’ in Article

6(4). In addition, the place of Article 6(3) in the structure of Article 6 as a whole corresponds to the place of ‘mitigation’

or ‘minimisation’ in the mitigation hierarchy as generally accepted.”

229. This Court finds itself in agreement with the Opinion of the Advocate General. In so far as Article 6(1) is concerned, the State

has established the necessary measures and management plans with a view to conserving the FPM and NFPM and their habitats, in

accordance with Annexes I and II of the Habitats Directive. These are the measures necessary at the highest level to “maintain or

restore” the species and habitat. The principle obligation in terms of conservation and restoration at this level falls to be implemented

on behalf of the State by the DAHG. In practice, this is carried out through the agency of the NPWS which in this instance set the

conservation objectives. It is however important to note that these objectives of the NPWS arise from a different brief and different

responsibility to that of a local authority or the Board. The NPWS brief includes, specifically, the restoration to a favourable status of

SACs and SPAs. It is not concerned with conservation alone – it has a wider brief.

230. It is the Court’s view therefore that in general, restoration to favourable conservation status of a SAC site is not an objective

that a planning authority or the Board on appeal is or can be required to impose, whether under Article 6 or domestic law, on an

applicant for planning permission. This general proposition carries particular force where the SAC falls outside the development site.

231. The Court, as did Advocate General Sharpston, finds support for this by reference to Article 6(2) where the second tier of

protection/conservation is a requirement that member states take appropriate steps to avoid “the deterioration of natural habitats

and the habitats of species as well as disturbance of species” within SACs. This second tier protection again is a matter for member

states and not imposed directly on local planning authorities or the Board. However, to the extent that it is imposed on them by virtue

of the PDA 2000, that legislation adopts the terminology of the Habitats Directive and accordingly, it is the prevention of

“deterioration” that is the imposed obligation. There is no statutory obligation imposed to ensure restoration.

232. The Court also agrees with Advocate General Sharpston that Article 6(3) is directed at considering plans or projects which may

affect the integrity of a European site but which in the light of mitigation measures may be approved if they “will not adversely affect

the integrity of the site concerned…”. In para. 50 of her Opinion she goes on to state:-

“On the one hand, not only is a mitigation measure necessarily bound up with the effect which it is intended to mitigate –

so that it must concern the same site and the same habitat type – but it must, in order to be considered in the context

of Article 6(3), form an integral part of the plan or project under consideration. It may…be included in the original plan or

project or be inserted as a condition at a later stage (but before approval of the plan or project), to deal with predicted

effects. The mere fact that a measure is likely to mitigate the effects of a plan or project is not, however, enough: it

must be specific to that plan or project and not part of any independent framework.”

233. This Court concurs with these views. In the instant case the mitigation measures were part and parcel of the application for

planning permission. This applies also to the modified/additional mitigation measures indicated in Coillte’s appeal document. It also

applies to the conditions considered by the Board as part of its AA and imposed by the Board in its decision. It is beyond dispute that

the mitigation measures are specific to the wind farm plan/project and not part of any independent framework. It is also clear that

they are designed and intended directly to mitigate any adverse affects in relation to surface water run-off.

234. Moreover, and as the Advocate General points out in para. 51 of her Opinion “…the measures must form a legally binding

condition for the implementation of the plan or project if it is to be given approval.” The manner in which the mitigation measures are

incorporated into conditions in the impugned decision means that they will be legally binding such that if breached, they can be the

subject of enforcement proceedings by the local authority or any interested party under the PDA 2000. The Court will return later to

the question of aspects of the mitigation measures being left over to subsequent agreement.

235. As can be seen in para. 33 of her Opinion, Advocate General Sharpston equated “mitigation” with “minimisation” and she returned

to this subject in para. 36:-

“The basic semantic distinction between mitigation (or minimisation or reduction) and compensation (or offsetting) does

not appear to me to be very controversial. In the context of Article 6(3) and (4) of the Habitats Directive, a mitigation

measure must be one which lessens the negative effects of a plan or project, with the aim of ensuring, if possible, that

(while some insignificant and/or transient effects might not be totally eliminated) the ‘integrity of the site’ as such is not

adversely affected.”

236. The CJEU in the Briel case took a similar interpretation of the measures that fall to be reviewed under Article 6(3). They stated

at para. 28 that the precautionary principle required national competent authorities to take “into account [among other things] the

protective measures forming part of that project aimed at avoiding or reducing any direct adverse effects for the site, in order to

ensure that it does not adversely affect the integrity of the site.” (emphasis added)

237. The CJEU in the Sweetman case had taken a similar view, where it stated at para. 39:-

…it should be inferred that in order for the integrity of a site as a natural habitat not to be adversely affected for the

purposes of the second sentence of Article 6(3) of the Habitats Directive the site needs to be preserved at a

favourable conservation status; this entails…the lasting preservation of the constitutive characteristics of the site

concerned that are connected to the presence of a natural habitat type whose preservation was the objective justifying

the designation of that site in the list of SCIs, in accordance with the directive.” (emphasis added)

238. The idea that insignificant or minimal effect/disturbance with a habitat or habitat species may be acceptable- in the sense that

Article 6(3) is not absolutist in its approach- is not one that is expressly enunciated in Article 6(3) or in the PDA 2000. It may arise

from consideration of what is the “integrity” of the site concerned. The Oxford English Dictionary defines it as “the state of being

whole; the condition of being unified or sound in construction”. Taking a narrow interpretation of the term “integrity of the site” would

be inconsistent with the Advocate General’s Opinion and the concept of a “mitigating measure”. In the view of the Court it is not

likely that the Council intended Article 6(3) to be absolutist in its prohibition on any plan or project adversely affecting the integrity of

the site, however small that adverse effect. In my view, Advocate General Sharpston took a practical and realistic approach when

indicating that a plan or project could still be approved notwithstanding that “some insignificant and/or transient effects might not be

totally eliminated”. This, it seems to me, is a reasonable approach and one that allows the deciding authority to apply a small degree

of flexibility in assessing the extent and severity of any possible adverse effect on the integrity of the site concerned. It also accords

with my comments on Article 6(2).

239. Accordingly, while the Board was obliged to, and did have regard to, the conservation objective of restoration (as it was part of

the NIS), the Board was not required by Article 6(3) or Part XAB of the PDA 2000 to refuse permission on the basis that the proposed

development and mitigation measures did not necessarily have a beneficial effect in terms of restoring the habitat of the NFPM. The

passage quoted above from the CJEU decision in the Briel case does not make reference to a national competent authority being

required to review measures having restorative effects on the particular site, only those avoiding or reducing impacts. Similarly, the

CJEU in Sweetman did not make reference to restoration to a favourable conservation status, only the maintenance of same. The AA

in this case did take into consideration the conservation objectives including the objective to restore the site or population from

unfavourable or declining status to a favourable condition. However, in order to qualify for approval it was not requisite that the

developer reduce the pre-existing pressure on the mussel habitat or improve the conditions within the habitat area. It was sufficient

therefore that the assessment, including examination and evaluation of the mitigation measures, was considered to be neutral or such

that it would not lead to deterioration of the habitat.

240. This Court is firmly of the view that the Board was entitled to consider the appeal in its entirety, including the mitigation

measures as an integral part of the proposal. The fact that it considered “the detailed mitigation measures proposed in respect of

water quality, including control of sediment, the preliminary drainage design submitted, and the scale of the filling coupes proposed” is

expressly stated on p. 4 of the decision.

241. It should be emphasised in this context that the Board had before it in the EIS details of the existing drainage which indicated

that the site had been forestry since the late 1930s and that varying drainage methods had been employed throughout the site

depending on the best practice at the time of cultivation. The Board also had before it evidence of ongoing forestry operations within

the proposed development site and within the SAC. It also had evidence that the NFPM was not known to have reproduced

successfully in the River Nore since 1970. The implication of this evidence was clear – environmental changes over many years had

already impacted on the habitat site to such an extent that self regeneration of the species has not occurred for several decades.

The detail of the NPWS document outlining the conservation objectives indicates that the main reason for this has been

sedimentation and problems with the sub stratum quality. The suite of mitigation measures address the hydrology of the site. Even to

a lay person they appear to be comprehensive and detailed and are meaures that in all probability will be an improvement on the

existing drainage from the development site where routine forestry operations continue to be undertaken. It is not difficult therefore

to understand why RPS in Appendix E of the NIS at p. 40 concluded that with the implementation of best practice and the

recommended mitigation measures, the proposed wind farm development would not have a significant effect either individually or in

combination with other plans or projects on the conservation objectives of the SAC and SPA.

242. The Court’s view is also that, when one considers the mitigation measures, the Board had ample evidence before it on which it

could reasonably conclude that the proposed development would not adversely affect the integrity of the SAC.

243. Of great significance in the context of Article 6 was the proposal in Coillte’s appeal document that “the limits proposed to be

imposed on the levels of total suspended solid within the stream draining the proposed development site should be altered and set to

reflect those levels of suspended solids which currently exist within those watercourses prior to any clear-felling or construction

activities commencing.”

244. Accordingly, the proposal was that there would be continuous monitoring of the total suspended solids undertaken on all streams

draining the site across both summer and winter seasons, work that the Court was informed is ongoing. This would identify an average

seasonal total suspended solids level within streams currently draining the site. Based on this, a total suspended solids limit would be

imposed as part of the proposed development based on the averages resulting from this survey, to be agreed with the NPWS and IFI.

The significance of agreeing this with the NPWS is that it is the agency within the DAHG with primary responsibility for the

conservation of the habitat and mussels within the site.

245. This provision would seem designed to achieve a situation where there is no deterioration of the water quality from the proposed

development site entering the tributaries of the River Nore upstream of the relevant habitats.

246. Paragraph 53 under s. 4.4.3 of the appeal document was also relevant:-

“In order to achieve the required quality for surface water discharge, run-off from the site will be collected and passed

through appropriately sized settlement ponds prior to discharge to the receiving water. Should more stringent discharge

standards be required, it will be possible to utilise high rate mobile settlement units (such as SiltBuster, or equivalent) in

order to provide additional treatment. It should also be noted that no in-stream works are proposed as part of the

proposed development and all turbines have been located to be a minimum of 50m from any watercourse.”

247. This was a clear indication to the Board that more stringent discharge standards would, if required, be adopted. Although the

applicants argued at the hearing that the siltbuster unit may use flocculants which in themselves might be a source of pollution

(although there was no evidence to this effect), this was countered by the suggestion that not all siltbusters utilise flocculants.

Considerations of that nature are precisely the type of technical matter upon which the Board would be expected to have some

expertise or, if it felt necessary, to obtain further expert advice it could have done so.

248. The Court agrees with the respondent that all of the mitigation measures, including those of a hydrological nature, are

incorporated into the permission as granted by virtue of condition 4 which stipulates that they shall be “implemented in full”. Condition

11 requires “[w]ater supply and drainage arrangements, including the disposal of surface water” to comply with the requirements of

the planning authority for such works and again ensures that the mitigation measures put in place meet the planning authority

requirements. These conditions are expressly intended to protect the environment and to prevent pollution.

249. Condition 13 is expressly directed at “maintaining water quality” during the construction stage, and requires that

“[c]onstruction-stage plans and particulars of the proposed drainage work shall be submitted to, and agreed in writing with, the

planning authority” and other related matters.

250. Condition 16 is also a highly relevant in this context in that it requires a “Construction-Stage Ecology Management Plan” to be

submitted to, and agreed in writing with, the planning authority prior to commencement of the development. This is to include details

of pre- and post-construction fauna surveys (carried out following consultation with the NPWS) and details of the sequencing of

construction and removal of vegetation, again following consultation with the NPWS and IFI.

251. Condition 17 in the view of the Court also contains an important mitigation measure, albeit that this appears to be a condition of

a standard type requiring that a Construction Management Plan be submitted to, and agreed in writing with, the planning authority

prior to commencement of the development and that it relates primarily to construction practices. Condition 17(k), on its face,

imposes a further mitigation measure that protects the SAC. In the view of the Court, it superimposes on the other mitigation

measures, and in particular the numerical limits on total suspended solids, a requirement that no silt whatsoever is carried from the

development site in surface water. This may in practice be a very onerous requirement, indeed it is possible that it is such a stringent

requirement that Coillte may not be able to comply with it. Theoretically therefore, it may be that Coillte will be unable to carry out

the proposed development pursuant to the permission granted by the Board. That however is not the concern of the Court. Mr. Devlin

SC argued that this was a mitigation measure which had never been identified and in respect of which there could not have been any

proper analysis or evaluation. It is true that it had not been previously identified as a possible mitigation measure but it does form part

of the Board’s decision and AA which in itself is expressed to be subject to “the implementation of the identified mitigation measures”.

On p. 4 of its decision, the Board expressly refers to mitigation measures “including control of sediment”. In any case, it is difficult to

see what further evaluation is required because condition 17(k) is self explanatory and is an absolute and apparently additional

prohibition on preventing silt or other pollutants entering the watercourse. It is also notable that the condition is buttressed by the

requirement that:-

“[p]rior to the commencement of construction, proposals for the environmental monitoring of construction works on site

by an environmental scientist or equivalent professional, including the monitoring of the implementation of construction-

stage mitigation measures, and illustrating compliance with the requirements set out above, shall be submitted to, and

agreed in writing with, the planning authority, together with associated reporting requirements.”

252. With regard to the argument that the Board’s decision is flawed because it leaves over to subsequent agreement between the

developer and the local authority (in consultation with others in certain instances) certain aspects of the mitigation measures, the

Court has carefully considered the decision in Boland v. An Bord Pleanála [1996] 3 IR 435. The permission in that case was granted

subject to a number of conditions which required the Minister for Marine (the Developer) to agree matters with the planning authority

including plans for the management of ferry traffic. In the Supreme Court, Hamilton CJ summarised with approval a passage from

Murphy J in Houlihan v. An Bord Pleanála (unreported, High Court, Murphy J, 4th October, 1993) where he had expressed the view

that:-

“(a) some degree of flexibility must be left to any developer who is hoping to engage in a complex enterprise;

(b) the extent to which flexibility or uncertainty is permissible in a planning permission is largely a matter of degree;

(c) technical matters or matters of detail could be left to the agreement of the planning authority and the developer

without invalidating the statutory decision of the Board;

d) the Board had the right to delegate to the planning authority to agree with the developer the revisions of the lay-out

consequent upon the re-siting of the boundary;

(e) to give a power by way of delegation from the Board to approve all or any route for the effluent discharge main

provided only that it is in an easterly direction constituted an improper abdication by the Board of its responsibilities in the

particular circumstances of the case and that he would have no difficulty in upholding the condition if the condition

imposed by the Board had prescribed that the main should be rerouted along a wide but defined pathway on a particular

line to be selected with the approval of the planning authority.”

253. Hamilton CJ at p. 466 then set out the criteria that would govern whether a matter could be left to agreement subsequent to

the decision in the following terms:-

“In imposing a condition that a matter be left to be agreed between the developer and the planning authority, the Board

is entitled to have regard to:

(a) the desirability of leaving to a developer who is hoping to engage in a complex enterprise a certain limited

degree of flexibility having regard to the nature of the enterprise;

(b) the desirability of leaving technical matters or matters of detail to be agreed between the developer and the

planning authority, particularly when such matters or such details are within the responsibility of the planning

authority and may require re-design in the light of the practical experience;

(c) the impracticability of imposing detailed conditions having regard to the nature of the development;

(d) the functions and responsibilities of the planning authority;

(e) whether the matters essentially are concerned with off-site problems and do not affect the subject lands;

(f) whether the enforcement of such conditions require monitoring or supervision.”

254. In the Boland case, the Supreme Court decided that the matters stipulated in the conditions were essentially technical matters

or matters of detail and that the respondent had not improperly abdicated its statutory duties to the planning authorities.

255. Blayney J who agreed with the Chief Justice added another criterion which seemed to him to be relevant. At p. 472 he said:-

“It is this: could any member of the public have reasonable grounds for objecting to the work to be carried out pursuant

to the condition, having regard to the precise nature of the instructions in regard to it laid down by the Board, and having

regard to the fact that the details of the work have to be agreed by the planning authority?”

256. This decision of course did not relate to an AA. It must be accepted that the nature of an AA is different to the normal planning

decision in respect of which the local authority or the Board retains a discretion to grant or refuse permission. This is notwithstanding

that the proposed development may not accord with good planning and development in all respects or may indeed contravene County

Development Plans. In respect of an AA, the potential adverse effects on the integrity of the European Site must be properly

described, examined and evaluated. This includes the mitigation measures. However, the point made by the Supreme Court in Boland

is that in complex enterprises there will be technical matters and matters of detail which can be left to subsequent agreement

between the developer and a local authority and in the Court’s view this applies also to a development which requires an AA. This is

emphasised when one considers the extent of the suite of mitigation measures that is proposed and the level of detail in the

documentation of RPS and Coillte. It is also important to note that, in so far as details have been left to further agreement, this has

to be reduced to writing and in certain instances requires prior consultation with the NPWS and/or IFI.

257. Furthermore, the applicants have not been able to point to any particular aspect left over to subsequent agreement which could

be regarded as central or of such importance or magnitude that it would be an abdication of the Board’s functions under the PDA

2000. The Court takes the view that the matters that have been left over are either technical matters or matters of detail. It is

further of the view that to require, in the case of a proposed development of this sort, that all details of design and implementation

down to the last drain, be submitted at the planning or pre-decision stage would be wholly impracticable. It would be to place an

additional and unreasonable burden in terms of time and expense on every developer involved in any proposal, however large or small.

It would lead to a proliferation of information and detailed design documentation that, in most moderate to large size developments,

would be unmanageable. Thus, the Court’s view is that it was entirely reasonable in this instance for the Board to leave over for

further agreement matters such as the detail of the size and position of proposed drains and settling ponds and the type of bunding

and filtration devices that might be used in order to comply with the conditions imposed. This finding should not be taken as applying

the criteria established in the Boland case to all AAs carried out by planning authorities or the Board. Rather, there are sufficient

parallels to allow some analogy to be drawn between the approach in that case and the proper approach to mitigation measures

conditioned in a planning proposal requiring AA.

Decision of the Court

258. The Board was entitled to determine, as it did, that it had information before it (including the NIS and EIS) sufficient to carry out

an AA. There were no significant lacunae and in this regard the applicants are not entitled to assert in this case that the information

with regard to the grid connection was deficient.

259. In carrying out the AA, the Board was entitled to approve the development once satisfied that it would not adversely affect the

integrity of the River Barrow and Nore SAC and specifically the habitat of the FPM/NFPM and those species. The Board was so

satisfied.

260. The Board was not required to be satisfied that the development would have a ‘positive’ or ‘improving’ or ‘restorative’ effect on

the mussels or their habitat ( i.e. in line with the NPWS objective of “restoration to a favourable conservation status”), nor was it

obliged to impose conditions requiring ‘restoration’.

261. The suite of mitigation measures contained within the development proposals and the conditions form an integral part of the

proposed development. They were sufficiently specific for the Board to carry out the AA and they were properly considered by the

Board as part of the AA.

262. There was ample evidence before the Board that the mitigation measures would protect the integrity of the SAC.

263. The Court rejects the submission that the Board failed to carry out the AA in the light of ‘the best scientific knowledge’ available.

The Board considered the best scientific evidence was contained within the NPWS conservation objectives document, the Forestry

Service document from 2011 and the hydrological evidence contained in the EIS and appeal submissions which was informed by the

RPS hydrologists.

264. Even though insignificant or transient effects on the SAC might not be totally eliminated by the mitigation measures, provided

the integrity of the site as such is not adversely affected the planning authority/the Board is entitled to approve the development.

265. The Board was entitled to leave over to subsequent agreement between Coillte and the local authority, in consultation as

required with other state agencies, technical matters or matters of detail, including the details of mitigation measures. The matters

left over in the conditions for such agreement do relate to detail or technical matters and were properly left over.

266. Accordingly, the Board carried out a proper AA which ‘engaged’ with all observations and included sufficient findings, examination

and analysis. Their determination on the AA was properly and clearly set out in the Board’s decision.

267. The Applicants accordingly fail on the grounds under consideration in this section of my judgment.

Ground (6) – Contravention of Development Plan

268. Ground (6) reads as follows:-

“The respondent failed to have regard for the decision to refuse permission for the development by Laois County Council.

The Council found that the proposed development would contravene development objective NH13/001 of the Laois County

Development Plan 2011-2017. Pursuant to section 37(2) of the Planning and Development Act 2000 the Board may only

grant permission where permission has been refused by reason of material contravention of a development plan in

specified limited circumstances. The Board had no regard to this section or its applicability to the decision of the planning

authority. The said decision is ultra vires, void and of no legal effect.”

269. This ground was pursued in written legal submissions but not in legal argument at the hearing. It is not difficult to understand

why when one considers the text of s. 37(2) of the PDA 2000:-

“(a) Subject to paragraph (b), the Board may in determining an appeal under this section decide to grant a permission

even if the proposed development contravenes materially the development plan relating to the area of the planning

authority to whose decision the appeal relates.

(b) Where a planning authority has decided to refuse permission on the grounds that a proposed development materially

contravenes the development plan, the Board may only grant permission in accordance with paragraph (a) where it

considers that—

(i) the proposed development is of strategic or national importance,

(ii) there are conflicting objectives in the development plan or the objectives are not clearly stated, insofar as the

proposed development is concerned, or

(iii) permission for the proposed development should be granted having regard to regional spatial and economic

strategy for the area, guidelines under section 28, policy directives under section 29, the statutory obligations of

any local authority in the area, and any relevant policy of the Government, the Minister or any Minister of the

Government, or

(iv) permission for the proposed development should be granted having regard to the pattern of development, and

permissions granted, in the area since the making of the development plan.”

270. In refusing to grant permission, the planning athority did not use the phrase “materially contravene” when outlining that the

development would breach objective NH13/001 of the Laois County Development Plan 2011-2017– it merely refers to “contravene”.

This important distinction was recognised by O’Malley J in Nee v. An Bord Pleanála [2012] IEHC 532 – a case in which the Court came

to the conclusion that the omission of the word “material” must have been a deliberate choice on the part of the Council. No evidence

has been put before this Court to suggest that, by the wording it adopted, Laois County Council intended to refer to a material

contravention.

271. It was suggested by the applicants in their written submission that, in light of the County Council’s decision, the Board was

advised to undertake an inquiry as to whether or not the council considered the contravention to be material and that the Board

undertook no such inquiry.

272. This argument fails to take into account that the underlying reason for Laois County Council indicating contravention of its

development plan was that it was not satisfied that a proper AA had been carried out. By contrast, the Board considered that it had

sufficient information to carry out an AA and proceeded to carry out an AA, concluding that the proposed development would not

adversely affect the integrity of the SAC or SPA. Having so concluded, the question of whether or not there was a contravention or

material contravention of the County Development Plan on this basis no longer arose. As has been mentioned, s. 37(1)(b) provides

that the effect of the Board’s decision is “to annul the decision of the planning authority as from the time when it was given” i.e. it is

a de novo jurisdiction. The effect of the Board’s decision was to annul the decision of Laois County Council to the effect that there

was no adequate AA. The question of contravention/material contravention therefore no longer arose for consideration or decision by

the Board and section 37(2)(b) had no relevance. This ground therefore must fail.

Other Grounds

273. Ground (7) – this ground pleaded that the letter of 18th July, 2014 from the respondent to the applicants in response to their

request for a copy of the record of the EIA and AA (inter alia) was inadequate and that no record of the assessment was furnished.

As this Court has already found that the Board’s decision itself contains sufficient record of the EIA and AA within its wording and by

reference to the documents to which it refers, it follows that this ground cannot be made out.

274. Ground (9) – within this ground it is pleaded that the Board “also failed to hold an oral hearing into the appeal despite being

requested to do so”. This ground was not pursued in legal argument. Under s. 134(1) of the PDA 2000 “[t]he Board may, in its

absolute discretion, hold an oral hearing of an appeal…”. Under s. 134A(1) it can “in its absolute discretion” hold an oral hearing where

it considers it “necessary or expedient for the purposes of making a determination in respect of any of its functions under this Act or

any other enactment”. In this case a petition was presented on 18th November, 2013 by a large number of persons opposed to the

proposed development requesting an oral hearing. The respondent gave a direction dated 3rd January, 2014 simply stating:-

“The submissions on this file were considered at a Board meeting held on 2nd January, 2014.

The Board decided that an Oral Hearing should not be held.”

275. Accordingly, the respondent exercised its statutory discretion not to hold an oral hearing. No more detailed ground or legal

argument was presented to this Court to suggest that that decision was in some way flawed or should be set aside. Accordingly, this

ground also must fail. It may however be commented that such were the concerns of local people that a large number of them signed

this petition seeking a hearing. It is apparent from the papers considered by the respondent on this appeal, the observations and

submissions made both in respect of the initial application and on the appeal that local residents had many concerns about the

proposed development. Given the nature and scale of the wind farm this is not surprising. While respecting the Board’s right to

determine in its absolute discretion that an oral hearing should not be held, it is unfortunate that no reasons were given for this

preliminary decision. However, whether there was any basis for challenging that decision to refuse an oral hearing on the basis that

no reasons were given does not arise in this case.

276. Grounds (11) and (12) ¬– these grounds relate to an erroneous reference in condition 1 of the respondent’s decision to revised

plans and particulars submitted to the Board “on the 9th day of August, 2013”. It is common case that this was the date of the

application by Coillte to Laois County Council for the planning permission and not the date of lodgement of any amended, revised plans

or particulars. This ground was not pursued presumably because it is accepted by the applicants that under s. 146(A) of the PDA

2000, the planning authority or the Board, as the case may be, is empowered to amend a planning permission granted by it inter alia

for the purposes of correcting any clerical error therein.

277. Ground (13) – this ground challenged the leaving over in the conditions of key matters to be agreed with the planning authority

post consent. This has already been dealt with in sections of this judgment dealing with the EIA and AA.

Conclusion

278. The applicants fail on all grounds and accordingly this application is dismissed.