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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> North Westmeath Turbine Action Group & Anor v An Bord Pleanala & Anor, Sweetman v An Bord Pleanala & Anor (Approved) [2025] IEHC 367 (16 June 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC367.html Cite as: [2025] IEHC 367 |
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THE HIGH COURT
COMMERCIAL
[2025] IEHC 367
[Record No. 2019/297 JR]
BETWEEN
NORTH WESTMEATH TURBINE ACTION GROUP AND NORTH WESTMEATH TURBINE ACTION GROUP COMPANY LIMITED BY GUARANTEE
APPLICANTS
AND
AN BORD PLEANÁLA
FIRST NAMED RESPONDENT
AND
IRELAND AND THE ATTORNEY GENERAL
SECOND NAMED RESPONDENT
AND
WESTMEATH COUNTY COUNCIL,
COOLE WIND FARM LIMITED
AND
GREENWIRE LIMITED/GREENWIRE WIND FARMS LIMITED
NOTICE PARTIES
[Record No. 2019/305 JR]
BETWEEN
PETER SWEETMAN
APPLICANT
AND
AN BORD PLEANÁLA
FIRST NAMED RESPONDENT
AND
IRELAND AND THE ATTORNEY GENERAL
SECOND NAMED RESPONDENT
AND
COOLE WIND FARM LIMITED
NOTICE PARTY
JUDGMENT of Mr. Justice Michael Quinn delivered on the 16th day of June 2025
PART ONE: INTRODUCTION AND DECISION
PART THREE: DIRECTIVES AND LEGISLATION
Part X of the Planning and Development Act 2000 (as amended).
The Habitats Directive (92/43/EEC).
Part XAB of the Planning and Development Act 2000
PART FOUR: WIND ENERGY DEVELOPMENT GUIDELINES 2006
Circulars PL 20-13 and PL 5/2017
PART FIVE: WESTMEATH COUNTY DEVELOPMENT PLAN AND P-WIN6
PART SIX: THE APPLICATION OF COOLE WIND FARM LIMITED
The Environmental Impact Assessment Report
Natura Impact Statement
PART SEVEN: INSPECTOR'S REPORT - 20 December 2018
Reasoned conclusion of the Inspector on EIA
Appropriate assessment conclusion
PART EIGHT: THE BOARD DECISION 26 MARCH 2019
PART TEN: JUDICIAL REVIEW OF PLANNING DECISIONS
PART ELEVEN: SWEETMAN V AN BORD PLEANÁLA & ORS. 2019/305JR.
11(1). Mr. Sweetman's EIA Grounds
11(5) The Natural England Guidelines of 2014 and 2019
11(6). At Height Survey 9 November 2018
11(7). Article 12 of Habitats Directive and bats
11(8). Summary as regards bats
11(9). Commercial peat extraction
11(11). Birds (EIA and Appropriate Assessment)
Appropriate Assessment for birds
11(12). Lough Kinale & Derragh Lough SPA
The screening out of Lough Kinale & Derragh Lough SPA
Holohan v An Bord Pleanála & Ors. (Case C-461/17)
The statutory instrument designation
Appropriate assessment of Lough Derravaragh SPA
11(14). Adequacy of bird surveys
11(15). Conclusion on Mr. Sweetman's Grounds
PART TWELVE: NORTH WESTMEATH TURBINE ACTION GROUP ("THE ACTION GROUP").
12(1). Adequacy of drawings and specifications
12(2). Plans, drawings and maps of turbines
12(3). Other plans and drawings
12(4). Conclusions as regards adequacy of plans and drawings
12(6). Project splitting and grid connection
Public participation in the assessment: the Environmental Impact Assessment Directive.
Conclusion as regards public notification of the grid connection
12(7). Inadequacy of design of grid connection
12(8). Mitigation conditions referable to the grid connection
12(10). Property devaluation, shadow flicker setback distances and noise (E15,16,17, and 18)
Circular PL20/13: December 2013
Circular PL 5/2017: 3 August 2017
Test for property devaluation - Ground E15
12(11). Are the Wind Energy Development Guidelines 2006 a relevant consideration?
Balz v. An Bord Pleanala [2019] IESC 90
12(12). Shadow flicker and conditions subsequent (Ground E17)
Case law on conditions subsequent
An Taisce v An Bord Pleanála & Others [2020] IESC 39
Condition 5 and the Construction and Environmental Management Plan
12(14). Conclusions as regards conditions generally
12(15). The Greenwire project - Grounds E19 and 20
12(16). Commercial peat extraction and related activities (E28, 29 and 30)
The Inspector's references to commercial peat extraction
Cleary Compost & Shredding Limited v An Bord Pleanála [2017] IEHC 458
Murphy v An Bord Pleanála & Others [2009] IEHC 38
12(17). Department of Culture, Heritage and the Gaeltacht - Letter 12 December 2017
PART THIRTEEN: ARTICLE 267 OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION
1. In these two cases, the applicants seek orders of certiorari of a decision of the first named respondent to grant planning permission for a development comprising a 13 turbine wind farm and associated works, at a location 2.5 kilometres north of the village of Coole, County Westmeath.
2. The applicants seek declarations that the decision was contrary to the Planning and Development Act 2000, to Council Directive 2014/52 (the Environmental Impact Assessment ("EIA") Directive) and Council Directive 92/43 (the Habitats Directive).
3. Declarations were sought by the applicant, Mr. Sweetman, that the State failed to adequately transpose certain provisions of the EIA Directive and the Habitats Directive. That claim was withdrawn by Mr. Sweetman during the course of the hearing, and his application against the State respondents was struck out.
4. No relief was sought against the State by the applicants in the first case, referred to in this judgment as the "Action Group". Before the hearing of the case, it applied for leave to amend its proceedings to include declarations that the Directives were not properly transposed into Irish law. That application was refused and an order was made by the court (Twomey J.) dismissing the Action Group's case as against the State respondents (2019 IEHC 924).
5. The proposed development comprises the construction of 13 wind turbines and associated foundations on hardstanding areas, an on-site electrical substation, a temporary construction compound, underground electrical and communications cabling connecting the turbines to the on-site substation, new site access roads, upgrading of existing tracks and drainage, the excavation of a borrow pit, a new link road between two regional roads to facilitate delivery of the turbines, junction improvement works to facilitate turbine delivery at two separate junctions, one between a regional and a local road and the second between a regional road and the N4 national route, and associated siteworks including tree felling.
6. The windfarm and the borrow pit and ancillary works are to be undertaken in the townlands of Coole, Monktown, Camagh, Doon, Clonsura and Mullagh, Co. Westmeath. The junction improvement works are to be undertaken at separate locations in the townlands of Boherquill and Joanstown, County Westmeath.
7. The main windfarm site is 439 hectares. Much of the site was stated to be already in use as commercial peatlands, alongside fringe areas of commercial forestry.
8. The village of Coole, which is the nearest identifiable populated area to the windfarm site, is 2.5 kilometres to the south. There are 12 houses located within one kilometre of the proposed turbine locations.
9. The developer did not apply for permission to construct a connection to the national grid and the decision to grant permission does not extend to a grid connection. The court was informed that a separate application would be made for planning permission for the laying of an underground grid connection.
10. In O'Grianna v An Bord Pleanala (2014 IEHC 632/ 2015 IEHC 248) Peart J. held that because a wind turbine serves no function unless it is connected to the national grid the connection is fundamental to the project and is an integral part of the development. He held that before planning consent can be granted for the windfarm it was necessary that an environmental impact assessment of the cumulative effects of the "combined or single project" be carried out. Where that had not occurred, he concluded that the decision to grant permission for the windfarm must be quashed.
11. In this case, having regard to O'Grianna, the reports submitted by the developer, including the required Environmental Impact Assessment Report (EIAR) and the Natura Impact Assessment (NIA), provided details of a grid connection including an intended route running 26 kilometres to a substation at Irishtown near the town of Mullingar. The Board performed an assessment of the project including the grid connection, noting the requirement to do so following O'Grianna.
12. The grid connection features prominently in the applicants' cases in two respects.
13. Firstly they claim that, although an outline of the proposed grid connection route was provided, it is not put forward as the definitive grid connection and there was not before the Board sufficient information to perform an assessment of its environmental effects in combination with the effects of the windfarm itself and, therefore, that the application and Board decision violate the rule against "project splitting" as applied to windfarms in O'Grianna.
14. Secondly, the Action Group claim that notices given to the public as required by the Planning and Development Regulations 2001 made no reference to the grid connection or its location, and thereby failed the requirement of the EIA Directive to give to the public notice of the environmental impact assessment of the integrated project. That is correct.
15. The notice published in advance of the application for planning permission contained particulars of the windfarm and ancillary activities. The notice was detailed, in that it referred to all the works for which planning permission was sought, being the turbines at the proposed windfarm and ancillary on site structures and works at other locations for the borrow pit and a new link road between two regional roads, over six townlands, and road junction improvements in the townlands of Boherquill and Joanstown. Having referred in detail to the works at the windfarm site and other locations, and the relevant eight townlands, the notice omitted any reference to environmental impact assessment of the grid connection works spanning 26 kilometres over 21 townlands. Whilst the grid connection was not included in the application for planning permission, it was an integral part, as Peart J. put it in O'Grianna, of the project which was required to be assessed for environmental impact.
16. In accordance with the judgment of the High Court in O'Grianna v An Bord Pleanála & Others a windfarm project and any proposed grid connection must be assessed for environmental impact assessment purposes as one integrated project. That assessment is a process which includes the giving of notice to the public. In this case the notice published referred to parts of the project being assessed, omitting any reference to the grid connection or its location. For the environmental impact assessment, of which public notification is mandatory, reference to the proposed grid connection and the location of its route was no less relevant than references to the other 'off site' parts of the project, namely the borrow pit, the new link road and the junction improvement works. The only difference was that no planning permission was sought or granted for the grid connection. But the consequence of O'Grianna is that the environmental impact assessment, required to comply in all respects with the EIA Directive, including the public notification step in that process, was required to include the grid connection .
17. There is no obligation to apply for permission for the windfarm turbine site and grid connection in one planning application. This can be done by separate and successive applications, as the court was informed would occur in this case. But the environmental impact assessment must be an EIA of the integrated project, as required by O'Grianna. Since the EIA is a process consisting of a series of actions including the giving of notice to and consultation with statutory consultees and the giving of notice to the public, this requirement was not complied with in this case.
18. The absence of this information in the published notice is not merely a matter concerning the level of detail in the notice. In other cases controversy has arisen as to whether a notice contains an adequate description of the works or location of the works or of the size of turbines or blades. The notice in this case contained extensive detail of the windfarm but no reference to the grid connection and its location spanning 26 kilometres and 21 townlands. It was not therefore a notice compliant with the Directive and the Regulations. As the giving of such notice is a prerequisite to a valid environmental impact assessment, which is mandatory before making the decision to grant or refuse permission, the Board had no jurisdiction to grant permission, and the decision must be quashed.
19. The detailed analysis and reasons for this conclusion are stated at Part 12(6) of this judgment.
20. Between the two cases, the only ground on which either of the applicants succeed is the Action Group's claim that the requirement in the EIA Directive for public notice of the environmental impact assessment of the project was not complied with. This is a fundamental requirement and the consequence of the finding must be a declaration that the decision of the Board failed to comply with the EIA Directive, and an order of certiorari of the decision.
21. The developer applied for permission to Westmeath County Council ("WCC") on 19 October 2017.
22. On 12 December 2017, Westmeath County Council decided to refuse permission. One reason only was stated for the refusal. That was that a then recent variation, referred to as Variation No. 2 to the Westmeath County Development Plan, 2014 to 2020, which became Policy P-WIN6 of the County Development Plan, provided for mandatory minimum separation distances between wind turbines and existing residential developments which, when applied to the proposed development, eliminated all but two of the proposed wind turbines. The proposed development would materially contravene policy P-WIN6 and would be contrary to the proper planning and sustainable development of the area.
23. On 16 January 2018, the developer appealed the refusal.
24. On 20 December 2018, the Inspector appointed by the Board, Mr. McLoughlin, issued his report recommending that permission be granted subject to 20 conditions stating his reasons and considerations.
25. On 13 March 2019, the Board, having met, issued a direction recording that the Board had decided to grant permission in accordance with Inspector's recommendations.
26. On 26 March 2019, the Board issued its Order granting the permission subject to 19 conditions and stating its reasons and considerations. That is the decision which the applicants seek to quash.
27. There is some, but limited, overlap between the grounds relied on and pursued by the applicants in each case.
28. Mr. Sweetman's grounds are principally as follows.
29. That the Board failed to perform the assessment required under the EIA Directive in the following respects:-
(a) That it failed to request from the developer information which had been identified as necessary by the Developments Application Unit (DAU) of the Department of Culture, Heritage and the Gaeltacht in a communication which it issued to Westmeath County Council on 12 December 2017, the day it made its decision.
(b) That the Board did not have regard to the DAU submission to the effect that bat surveys at the site were taken only at low altitude, thereby underestimating the effect of the development on certain high flying bats, notably the Leisler Bat.
(c) That the Board did not take account of updated guidelines relating to the effect of windfarms published in January 2019 by Scottish National Heritage and others.
(d) That the Board failed to assess the effects of certain peat extraction activities at the site, and failed to consider the risk of bog slippages or bursts.
(e) A failure to adequately consider alternatives to the development, including the alternative of using lower turbines.
30. Mr. Sweetman claims that the decision was made contrary to requirements of the Habitats Directive, inter alia, for the following reasons:-
(a) That the Board erred in screening out from the requirement for appropriate assessment as required pursuant to Article 6(3) of the Directive the Special Area of Conservation Lough Kinale and Derragh Lough.
(b) That the Board performed an erroneous assessment of the effects of the project on conservation interests in sites which were "screened in" for assessment, notably Lough Derravarragh SPA, by omitting to assess the impacts of the project on water birds known to be present on that site, notably the Mallard, Little Grebe, the Mute Swan, the Great Crested Grebe and the Great Cormorant.
(c) That there were lacunae in bird surveys for species known to be on sites designated pursuant to the Directive but not listed by name in the statutory instruments designating the sites.
31. Mr. Sweetman claims also that the decision was made in contravention of the Westmeath County Development Plan and, in particular P-WIN6, a policy which stipulated minimum distances between wind turbines and homes, the effect of which, if adhered to, would have been to eliminate all but two of the turbines.
32. The grounds invoked by the Action Group may be summarised as follows.
33. By reference to s.34 of the Planning and Development Act, 2000 and the Planning and Development Regulations S.I. 600/2001 (Articles 22 and 23) the Group say that the particulars, maps, plans, and drawings required for a valid and complete application were not adequate and therefore that the Board had no jurisdiction to consider and determine the application.
34. The Action Group submitted that particulars of the consent of the owners of land on which the project would be developed were not furnished.
35. In relation to the requirements of the Environmental Impact Assessment Directive the following grounds are invoked:
(i) Because the precise route of the intended grid connection was not defined at the required level of detail it was not possible for the Board to comply with the obligation to assess it and its cumulative effects with the wind farm itself.
(ii) That the notice to the public did not refer to the existence or location of the proposed grid connection, being an integral part of the project assessed, thereby failing to comply with the requirement for public participation in the assessment.
(iii) That the Board erred in carrying out an EIA in its consideration of alternatives to the project. They submit that the consideration of alternatives should be limited to environmental effects.
(iv) That an inappropriate test was applied in respect of effects on property valuation.
(v) That the Board had regard to irrelevant considerations in applying Wind Energy Development Guidelines issued by the Minister for Environment, Heritage and Local Government in 2006 which are out of date.
(vi) That the Board erred by addressing questions of shadow flicker and noise compliance by way of conditions subsequent.
(vii) That the Board failed to identify likely cumulative effects of the project with another project, Greenwire, also being pursued by the developer's parent company, being other windfarms stretching from the lands the subject of this application through other tracts of land into County Meath.
(viii) A number of conditions attached to the decision are void for uncertainty because they require that mitigation measures identified in the developer's Environmental Impact Assessment Report ("EIAR") and other plans and particulars submitted by the developer be implemented by the developer and that it is impossible to discern the obligations which are contained in those conditions.
(ix) That a number of the conditions of the decision require the submission of schedules of mitigation measures and monitoring commitments for subsequent agreement with the planning authority, a process which they submit is firstly, an impermissible delegation of the Board's decision-making function and secondly, excludes the public from participation.
(x) That the lands comprised in the application are the subject of unauthorised development, namely certain commercial peat extraction works which have previously been determined by the Board to be development and not exempt development and that the project is engrafted on to those unauthorised works and structures.
(xi) That a number of the conditions of the decision rely on or relate to third party land which lies outside the control of the developer and in respect of which no landowner consent has been obtained.
(xii) Failure to have regard to submissions of the Development Applications Unit ("DAU") of the Department of Culture, Heritage and the Gaeltacht, referring in particular to separation distances between the turbine blades and the habitats of certain bat species.
36. The Action Group states a number of grounds referable to the Habitats Directive including the following. Some of these overlap with the EIA grounds:
(i) That in the absence of a concluded design and only an indicative route for the grid connection the obligation to assess the effects of the totality of the development on identified European sites was not complied with.
(ii) That the Board erred in law and acted contrary to the requirements of the Habitats Directive in concluding that the condition requiring the submission and agreement with the planning authority of a Construction Environmental Management Plan (CEME) provided the level of certainty required to enable a valid appropriate assessment to be performed under the Directive.
(iii) That mitigation measures identified in the conditions to the decision were incapable of being implemented where the developer had no control over certain of the lands identified in the mitigation measures.
(iv) That mitigation measures referable to the grid connection relate to third party lands which cannot be the subject matter of conditions pursuant to the Act.
37. The Action Group claims that the Board failed to give any or any adequate reason for a decision materially contravening the Westmeath County Development Plan.
38. The provisions of the EIA Directive and the Habitats Directive, transposed by Part X and Part XAB of the Planning and Development Act 2000 apply to the project.
39. This Directive amended Directive 2011/92. It imposes on Member States a requirement to adopt measures necessary to ensure that projects "likely to have significant effects on the environment" are subject to a requirement for development consent and that before consent is given the project is subjected to an assessment with regard to their effects on the environment (Article 2).
40. Article 2.2 provides that "the environmental impact assessment may be integrated into the existing procedures for development consent to projects in the Member States, or failing this, into other procedures or into procedures to be established to comply with the aims of that Directive."
41. The State elected to integrate environmental impact assessment into the procedures for the grant of planning permission contained in the Act of 2000, by amendments to that Act and certain regulations described below. Therefore one "unitary" procedure now serves the dual purposes firstly of applying for and granting planning permission and secondly of performing the environmental impact assessment required by the Directive before making a decision to grant planning permission.
42. Environmental Impact Assessment ("EIA") is defined to mean a process consisting of a sequence of steps, as follows. Firstly, the preparation and submission by the developer of an Environment Impact Assessment Report ("EIAR") as described in Article 5 of the Directive. Secondly, consultation with designated consultees and public participation. Thirdly, the examination by the relevant competent authority of the information presented in the EIAR and any supplementary information provided. Fourthly, a reasoned conclusion by the authority on the significant effects of the project on the environment, taking into account the results of the examination submitted by the developer and where appropriate its own supplementary examination. The authority is required to integrate its reasoned conclusion in any decision to grant or refuse a development consent.
43. Article 5 prescribes the information which must be contained in an EIAR submitted by the developer.
44. Article 6 describes the obligation on decision making authorities regarding consultation with statutory consultees and public participation.
45. Art 6.2 provides:
"In order to ensure the effective participation of the public concerned in the decision making procedures, the public shall be informed electronically and by public notices or by other appropriate means, of the following matters early in the environmental decision making procedures referred to in Article 2(2) and, at the latest, as soon as information can reasonably be provided:
(a) the request for development consent;
(b) the fact that the project is subject to an environmental impact assessment procedure...
The "environmental decision making procedures referred to in Article 2(2)" are in the case of the State the procedures under the Act of 2000 as amended, which serve the dual purposes of regulating procedures for applications for and decisions to grant planning permission and of performing the environmental impact assessment required before a decision is made to grant planning permission.
46. Article 9 imposes a requirement to publicly announce decisions to grant or refuse development consent Article 11 requires that members of the public concerned have access to a review procedure before a court of law or other independent or impartial body.
47. Section 171A of the Act is prescriptive as to the process of environmental impact assessment. It is defined as a process
"(a) consisting of
- (i) the preparation of an environment impact assessment report by the applicant in accordance with this Act and regulations made thereunder;
(ii) the carrying out of consultations in accordance with this Act and regulations made thereunder;
(iii) the examination by the planning authority or the Board, as the case may be of
(I) the information contained in Environmental Impact Assessment Report;
(II) any supplementary information provided where necessary by the applicant; and
(III) any relevant information received through the statutory consultations;
(iv) the reasoned conclusion of the planning authority or the Board, as the case may be and the significant effects on the environment of the proposed development, taking into account the results of the examination carried pursuant to sub. 3 and where appropriate of its own supplementary examination;
(v) the integration of the reasoned conclusion of the planning authority or the Board, as the case may be into the decision on the proposed development; and
(b) which includes -
(i) an examination analysis and evaluation, carried out by the planning authority or the Board, as the case may be, in accordance with this Part and regulations made thereunder, that identifies, describes and assesses, in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of the proposed development on the following: -
(I) population and human health;
(II) biodiversity, with particular attention to species and habitats protected under the Habitats Directive and the Birds Directive;
(III) land, soil, water, air and climate;
(IV) material assets, cultural heritage and the landscape;
(V) the interaction between the factors mentioned in clauses (i) to (iv); and
(ii) as regards the factors mentioned in subparagraphs (I) to (V) such examination, analysis and evaluation of the expected direct and indirect significant effects on the environment derived from the vulnerability of the proposed development to risks of major accidents or disasters or both major accidents and disasters, that are relevant to that development."
48. Section 172(1)(g) identifies the matters which must be considered by the planning authority or the Board in carrying out an environmental impact assessment as follows: -
"(a) the Environmental Impact Assessment Report;
(b) any further information furnished to the planning authority or the Board pursuant to any request for further information made by it;
(c) any submissions or observations that have been made in relation to the environmental effects of the proposed development; and
(d) the views if any provided by any other Member State, where relevant."
49. Section 172(1)(h) obliges the planning authority or the Board to ensure that it has or has access as necessary to sufficient expertise to examine the Environmental Impact Assessment Report.
50. Section 172(1)(i) provides that where the authority or the Board decides to grant consent it shall
"(i) attach such conditions if any to the grant as it considers necessary to avoid, prevent or reduce and if possible offset the significant adverse effects on the environment of the proposed development; [1]
(ii) in the decision specify the features if any of the proposed development and the measures if any envisaged to avoid, prevent or reduce and if possible offset the significant adverse effects on the environment of the development; and
(iii) where appropriate specify in the decision measures to monitor the significant adverse effects on the environment of the development."
51. Section 172(a)(i)(j) obliges the authority or Board where it has decided to grant or refuse consent to make certain information available to the applicant and to the public, including the contents of its decision, its evaluation of the effects of the development on the environment and to state the reasons and considerations for the decision and for any conditions attached.
52. The Habitats Directive governs the obligations of Member States to nominate and designate sites as special areas of conservation for the maintenance and survival of certain species of animals and plants in need of restoration, conservation and protection. Sites so designated are referred to as European Sites.
53. Member States are required pursuant to Article 6 to establish conservation measures for such sites and to take appropriate steps to avoid the deterioration of natural habitats and habitats of species and the disturbance of species for which the sites have been designated. No such designated sites are within the boundary of the proposed windfarm in this case. In respect of projects, such as this, not directly connected with or necessary to the management of any designated site Article 6.3 is relevant: -
"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." (Emphasis added).
54. The first sentence of Article 6.3 obliges the planning authority or the Board firstly to identify any European site on which it is likely that an intended development would have a significant effect. This is referred to as the screening for appropriate assessment. In respect of any sites which are "screened in" for this purpose the authority or Board is obliged to perform the "appropriate assessment" of its implications for the site in view of the European site's conservation objectives. It may only agree to the plan or project after it has 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". (Emphasis added).
55. The obligations in Article 6 of the Habitats Directive extend not only to sites which are designated as special areas of conservation (SAC) pursuant to the Habitats Directive, but also to special protection areas (SPAs) classified as such pursuant to the Birds Directive (2009/147/EC).
56. Part XAB of the Act transposes the Habitats Directive and is prescriptive in relation to screening for appropriate assessment and appropriate assessment itself, having regard to case law of the CJEU on the subject.
57. Section 177T(1)(b) defines a Natura Impact Statement as a statement for the purposes of Article 6 of the Habitats Directive of the implications of any 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. Section 177T(2) provides that an NIS must include a report of a scientific examination of evidence and data carried out by competent persons. An applicant for planning permission may, or, if directed by the planning authority, shall furnish an NIS in relation to a proposed development (s.177T(4)). In this case the developer submitted an NIS.
58. Section 177U(1) provides as follows.
"A screening for appropriate assessment of a draft land use plan or application for consent for proposed development shall be carried out by the competent authority to assess, in view of best scientific knowledge, if that land use plan or proposed development, individually or in combination with another plan or project is likely to have a significant effect on the European site."
59. Section 177(U)(2) provides that a competent authority must carry out screening for appropriate assessment before granting consent for a proposed development.
60. Section 177U(3) provides that the competent authority "may request such information from the applicant as it may consider necessary to enable it to carry out that screening, and may consult with such persons as it considers appropriate."
61. Section 177U(4) provides as follows:
"The competent authority shall determine that an appropriate assessment of a draft land use plan or a proposed development, as the case may be, is required if it cannot be excluded, on the basis of objective information, that the draft land use plan or proposed development, individually or in combination with other plans or projects, will have a significant effect on a European site."
62. Conversely s.177U(5) provides that an appropriate assessment is not required if it can be excluded that the proposed development will, individually or in combination with other plans or projects, will have a significant effect on a European site.
63. Section 177V governs appropriate assessment itself and provides in subsection 1:
"(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 land use plan or 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, before... consent is given for the proposed development."
64. Section 177V(2) identifies the matters which the authority must take into account including the NIS, any supplemental information furnished or received, and any submissions or observations made to it.
65. Section 177V(3) provides that:
"a competent authority shall make a land use plan or give consent for proposed development only after having determined that the proposed development shall not adversely affect the integrity of a European site."
66. Section 28 of the Planning and Development Act, 2000 provides that the Minister may at any time issue guidelines to planning authorities regarding any of their functions under the Act and planning authorities shall have regard to those guidelines in the performance of their duties. Section 28(2) provides that where applicable the Board shall have regard to any guidelines issued to planning authorities in the performance of its function.
67. In 2006 the Minister for Environment, Heritage and Local Government issued guidelines pursuant to s.28 in relation to wind energy development. These are referred to in this judgment as the 2006 Guidelines, or the WEDG.
68. The relevance and content of those Guidelines features prominently in the Action Group's case, and it is appropriate to refer to them in some detail.
69. The Guidelines were an update of and superseded guidelines issued in 1996. They were stated to be issued pursuant to s.28 of the Act, which requires both planning authorities and the Board to have regard to them in the performance of their functions.
70. The Guidelines run to 113 pages. They state the policy background, principally that the development of renewable energy sources are priorities nationally and at a European level on both environmental and energy policy grounds. The Guidelines record that implementation of such policies must also have regard to the environment. They refer to the National Development Plan, 2000-2006, Policies on Sustainable Development, 1997, the EU White Paper on Renewable Energy 1999, a Green Paper on Sustainable Energy, the Electricity Regulation Act, 1999, the National Climate Change Strategy of 2000, the Habitats Directive and the Birds Directive and other published conventions and policies.
71. Chapter 4 advises authorities and the Board on issues arising before and during the planning process and contains guidance on pre-planning consultation, grid connections, public consultation and the requirements in relation to environmental impact statements.
72. Chapter 5 is dedicated to environmental implications including such matters as natural heritage, habitats and species, ground conditions and geology, archaeology, architectural heritage, noise, safety, proximity to roads, railways and power lines, interference with communication systems, aircraft safety, shadow flicker and spatial considerations and provisions relating to decommissioning and reinstatement.
73. Under the heading of noise, the guidelines state that "in general noise is unlikely to be a significant problem where the distance from the nearest turbine to any noise sensitive property is more than 500 metres."
74. S.5.2 addresses the subject of shadow flicker. It includes a recommendation that shadow flicker at neighbouring offices and dwellings within 500 metres should not exceed 30 hours per year or 30 minutes per day.
75. In relation to grid connections, (4.3) the Guidelines say:-
"Best practice would suggest that an integrated planning application that combines grid interconnection information together with details of the wind energy development should be submitted to the planning authority. However, if this is not possible then the planning authority should agree in advance with the developer the information on the grid connection that they consider necessary to enable them to fully assess a planning application for the wind energy project, and which the developer is in a position to furnish. [2]
Details of indicative and feasible options for grid interconnection lines and facilities should in general be adequate for a planning authority to consider a wind energy application as the precise capacity required for connection will not be known until planning permission is obtained. Suggested content for these indicative and feasible options include (a) the general direction of connection (b) connecting line capacity and (c) line supporting structure.
The planning authority should note that it may not be possible due to reasons outside the applicant's control, to provide information on indicative grid connections at the preplanning consultation or planning application stage of the wind energy development.
It is therefore inappropriate for the planning authority or Bord Pleanála on appeal to attach conditions to planning permissions for wind energy developments in regard to the location of the connection to the grid. In these instances a separate application for the grid connection will be necessary.
However, where such information is available and is submitted as part of the planning application of a planning application it would be appropriate if considered necessary to attach conditions in regard to the grid connection.
In order to minimise project development risks and to ensure appropriate grid infrastructure which takes account of potential impact on the built or natural heritage, wind energy developers and energy companies should consult with the planning authority and with the development applications unit of the Department of Environment, Heritage and Local Government in regard to the submission of a separate application for a grid connection."
76. Chapter 6 contains detail in relation to siting and design of wind turbines including spatial requirements, layouts, height and general guidelines in relation to the suitability of different landscapes. It contains specific guidelines in relation to the siting and location of windfarms on peatland and other categories of landscapes including industrial type lands, coastal lands, uplands and others.
77. Chapter 7 provides guidelines in relation to the conditions which might attach to any development consent. It identifies a number of matters which it considers may be appropriately dealt with by the inclusion of conditions in a planning permission for wind energy development. The list includes such matters as the following.
ˇ Siting design and layout, flexibility of turbines layout on site.
ˇ Flora, fauna and habitats.
ˇ Archaeology.
ˇ Noise.
ˇ Environmental impact and monitoring.
ˇ Construction.
ˇ Borrow pits and quarrying.
ˇ Roads and access routes.
ˇ Associated structures and equipment.
ˇ Grid connections.
ˇ Site management issues.
ˇ Shadow flicker.
ˇ Electromagnetic interference.
ˇ Aeronautical safety.
ˇ Wind take.
ˇ Financial contributions.
ˇ Wind measuring masts.
ˇ Decommissioning.
ˇ Time limits.
78. The Guidelines recognise in 7.3, that the precise location of turbines may need to be modified in the course of development and that it may be helpful in conditions to allow for a degree of flexibility in the final siting of turbines. Where this is done details of final specification should be submitted to and agreed in writing with the planning authority prior to commencement of development.
79. Paragraph 7.12 addresses grid connections and includes the following statement:
"It is not appropriate to attach conditions in regard to grid connections on land outside the ownership of the applicant as part of the permission for the wind energy development."
80. Paragraph 7.14 stipulates in relation to shadow flicker the following
"shadow flicker is not usually critical. However in unusual circumstances, where the calculations indicate that occupied dwelling houses would be significantly affected, a condition requiring the non-operation of turbines at times when predicted shadow flicker might adversely impact on any inhabited dwellings within 500 metres of a turbine may be appropriate.
Conditions may also address limits on the number of hours per year or minutes per day that the shadow flicker should affect an inhabited dwelling."
81. The Guidelines do not contain any stipulated minimum distance between dwelling houses and turbines, but refer in a number of places to "heightened issues" which may arise where the distance is less than 500 metres.
82. Appendix 3 contains provisions regarding the landscape impact assessment of any proposals and preferred requirements in relation to the selection of viewing reference points and the preparation of "a montage of the development all with a view to estimating the likelihood of impact on any landscape".
83. Appendix 4 is entitled "Best practice for wind energy development in peatlands". It includes guidelines in relation to measures which would serve to reduce impacts, including minimising habitat disturbance and loss, hydrological disruption and the risk of erosion. It contains recommendations in relation to the construction of access tracks and roads in peatland areas and the construction of foundations for turbine towers.
84. I return in more detail later to the Guidelines, in particular in the context of submissions by the Action Group that they are out of date and did not contemplate turbines of the size proposed in this case. It is not submitted that the Guidelines were, when considered by the Inspector in this case, out of date and irrelevant in every respect.
85. On 20 December 2013 the Minister issued a circular, PL 20-13, which announced that "a focused review" of the Guidelines was underway. The circular advised that local authorities should defer amending their existing development plan policies in relation to wind energy and renewable energy as part of either the normal cyclical six yearly review or plan variation processes and should instead operate their existing development plan policies and objectives until the completion of the review.
86. On 3 August 2017 the Department of Housing, Planning and Local Government issued a circular (PL 5/2017) to all planning authorities and the Board entitled: Interim Guidelines for Planning Authorities on Statutory Plans, Renewable Energy and Climate Change and Wind Energy Development Guidelines 2006 - Update on Review". In this circular the Minister confirmed that PL 20-13 continued to be the advice of the Department.
87. The Minister explained in his update that the review of the Guidelines of 2006 had taken longer than initially envisaged due to public consultations. Progress had been made on the review but in recognition of the lapse of time since the review of the 2006 Guidelines had commenced it was considered that guidance was necessary to ensure that statutory plans continued to place the highest degree of priority on practical steps assisting in the delivery of such projects. Therefore, the Minister stated that he was now issuing, and he enclosed "Interim Guidelines for Planning Authorities on Statutory Plans Renewable Energy and Climate Change". The Minister explained that these Interim Guidelines focused on administrative procedures to be carried out by authorities in the context of any review of their development plans. He stated that the Interim Guidelines do not replace or amend the Guidelines of 2006. It was the intention that the administrative provisions contained in the Interim Guidelines would ultimately be incorporated in the revisions to the 2006 Guidelines.
88. Section 3 of the Interim Guidelines provides that for the purpose of these guidelines planning authorities "shall, in particular have regard to the following national plans policies and strategies when making, reviewing, varying or amending development plan or local area plan policies or objectives that relate to renewable energy, and in particular wind energy developments:-
ˇ The National Renewable Energy Action Plan 2010
ˇ The Government's Strategy for Renewable Energy 2012 - 2020
ˇ The Government's White Paper on Energy Policy - Irelands Transition to a Low Carbon Energy Future 2015 - 2030 and;
ˇ The Government's National Mitigation Plan, July 2017."
89. Section 4 of the Interim Guidelines state:-
"It is a specific planning policy requirement under section 28(1)(c) of the Act that in making, reviewing, varying or amending a development plan, or a local area plan, with policies or objectives that relate to wind energy developments, the relevant planning authority shall carry out the following:-
(1) Ensure that overall national policy on renewable energy is acknowledged and documented.
(2) Indicate how the implementation of the relevant development plan or local area plan over its affected period will contribute to realising overall national targets on renewable energy.
(3) Demonstrate detailed compliance with item no. 2 above in any proposal to introduce or vary a mandatory setback distance or distances for wind turbines from specified land uses or classes of land use into their development plan or local area plan." (Emphasis added).
90. Circular PL5/2017 informed authorities also that the Minister had outlined an emerging "preferred draft approach" to address key aspects of the review of the 2006 Guidelines and he identified the following:-
"The key aspects of the preferred draft approach are:
ˇ The application of a more stringent noise limit.
ˇ A visual amenity setback of four times the turbine height between a wind turbine and the nearest residential property, subject to a mandatory minimum distance of 500 metres between a wind turbine and the nearest residential property.
ˇ The elimination of shadow flicker.
ˇ The introduction of new obligations in relation to engagement with local communities by windfarm developers along with the provision of community benefit measures."
91. In this case the proposed turbine height is 175 metres.
92. On 21 January 2014 Westmeath County Council adopted the Westmeath County Development Plan 2014 - 2020. The plan included a statement of policies and objectives in relation to wind energy projects. It stipulated required set-back distances for industrial wind turbines. Following a statutory direction by the Minister for State of the Department of Environment, Community and Local Government this stipulation was deleted.
93. On 27 July 2015 the Council adopted a variation of the plan containing stipulations as to nighttime noise limits and to recognise registered equine facilities as "noise sensitive receptors".
94. On 13 January 2017 the Council gave notice of its intention to make a further variation to the County Development Plan stipulating separation distances between wind turbines and homes.
95. On 23 April 2017 the Council adopted that variation, variation no. 2, which is referred to as P-WIN6. P-WIN6 provided as follows:-
"To provide the following separation distance between wind turbines and residential dwellings:-
ˇ 500 metres, where the height of the wind turbine generator is greater than 25 meters but does exceed 50 metres.
ˇ 1000 metres, where the height of the wind turbine generator is greater than 50 meters but does exceed 100 metres.
ˇ 1500 metres, where the height of the wind turbine generator is greater than 100 meters but does exceed 150 metres.
ˇ More than 2000 metres, where the height of the wind turbine generator is greater than 150 meters".
96. Before the Council adopted P-WIN6, its Chief Executive made a report on 24 March 2017. The Chief Executive considered that the proposed variation was in conflict with national and regional policy. He stated, "there are considerable legal risks (including litigation costs)" and he recommended that the Council do not adopt it. The Chief Executive considered submissions which had been received on the proposed variation and noted that the Department of Housing, Planning, Community and Local Government had requested that the Council not proceed to adopt the proposed variation on the grounds that it conflicted with settled government policy in the sector and is premature pending the finalisation of the review of the Wind Energy Guidelines 2006. The Chief Executive noted that the Department had observed that the introduction of mandatory exclusion zones for commercial wind farm developments would seriously restrict the potential for the development of wind energy infrastructure in the county. He was satisfied that the policies in the Westmeath County Development Plan 2014 - 2020 were consistent with the wind energy development policy framework set at national and regional level and did not require amendment.
97. Notwithstanding the Chief Executive's Report, P-WIN6 was adopted by Westmeath County Council on 23 April 2017.
98. On 19 October 2017 the developer made its application to Westmeath County Council for planning permission.
99. In the covering communication the developer referred to a previous application which it had made on 9 June 2017. That application had led to a request for further information from Westmeath County Council, in which 53 information requirements were stated. Following receipt of the request for further information the developer decided to make a new application, lodged on 19 October 2017. In doing so it stated that all of the requests for further information had been addressed and that previously requested details and clarifications had been integrated into the current application documents including the EIAR and other supporting material.
100. The first point identified in the WCC request for further information was that the application did not comply with P-WIN6, which, having regard to the proposed height of the turbines (175 metres), would require set back distances between turbines and residential dwellings of 2000 meters.
101. The developer acknowledged that the County Council must consider the proposal by reference to P-WIN6 but stated that the application was for a project which had been designed not with regard to the separation distances specified in P-WIN6 but instead deferring to national guidance. The developer pointed out that the Guidelines of 2006 suggest that a 500 metre setback provides adequate separate distance between residential development and turbines and that this project had been designed to provide a minimum separation distance of 700 metres, with no turbines proposed within 700 metres of any occupied dwellings.
102. On 12 December 2017 the Council issued its decision to refuse permission, stating as the sole reason that the development would materially contravene policy P-WIN6 of the County Development Plan.
103. The developer's appeal to the Board acknowledged again that the application does not comply with the separation distances of 2,000 metres that would be required under policy P-WIN6 of the Development Plan. The closest occupied dwelling to any turbine would be 702 metres. The developer referred to the Guidelines of 2006 which suggest a 500 metre setback as adequate separation distance between turbines and the nearest noise sensitive property.
104. In the appeal the developer referred to the 53 requests for further information made by the planning authority and provided a table identifying where in the supporting reports, including the EIAR, those were addressed.
105. On 26 March 2019 the Board issued its decision to grant permission for the development.
106. I shall return later to the contents of the Board's decision and the Inspector's report recommending it. Before doing so, I shall describe the material submitted by the developer in support of its application.
107. The application was submitted on behalf of the developer by Messrs McCarthy Keville O'Sullivan (MKO) Planning and Environmental Consultants. The application contained required statutory information such as description of the development, maps, plans and drawings, site and newspaper notices, payment of the planning fee and other information, confirmation of landowner consents, an EIAR in four volumes, and a Natura Impact Statement.
108. The reports and appendices (including photo montages) accompanying the application ran to some 1,700 pages.
109. Having regard to the breadth of the claims made by the applicants in these cases it is informative to refer in some detail to the content of the developer's application, the Report of the Inspector and the decision of the Board.
110. The EIAR contains an introduction which describes the lands on which the project is proposed, the legislative context and guidance, descriptions of the need for the proposed development having regard to European national and regional policy on the development of renewable energy projects and economic and other benefits. The principal report is authored by MKO who are the intended project managers and who also prepared the NIS. The report includes sections authored by specialists in assessing impacts on land, water, soil, birds, bats, and external experts in flood risk assessment, drainage design, peat stability assessment, peat management, noise, and cultural heritage.
111. The report contains chapters dedicated to each of the following subjects:-
(2) The background to the proposed development.
(3) Description of the proposed development.
(4) Human beings, population and human health.
(5) Biodiversity, Flora and Fauna.
(6) Biodiversity, birds.
(7) Land soils and geology.
(8) Hydrology and hydrogeology.
(9) Air and climate.
(10) Noise and vibration.
(11) Landscape and visual.
(12) Archaeology and cultural heritage.
(13) Material assets comprising traffic and transport, telecommunications and aviation.
(14) A chapter summarising the potential for interacting effects of the features of the project considered earlier, including mitigation measures and residual impacts.
112. The application does not seek permission for construction of a connection to the national electricity grid. However, it is stated that all elements of the proposed project including the grid connection and any works required on public roads to accommodate turbine delivery have been addressed in the report.
113. The appendices to the Report include details of the statutory body submissions and further information request made by Westmeath County Council in the original application, a public consultation document by the developer's parent company Element Power, a replanting assessment in the context of AA (appropriate assessment), a Construction and Environmental Management Plan and a Cable Route Assessment. The appendices include also a Birds Technical Appendix, which comprises target species list, survey data and flight line maps, a Collision Risk model, a Proposed Bird Monitoring Programme, a Peat Stability Assessment, Trial Pit and Window Sample Logs, a Peat Management Plan, a Flood Risk Assessment, Water Quality Laboratory Results, Channel Dimensions, Carbon Saving Calculations, reports on noise monitoring locations, noise measurement systems, noise levels for the borrow pit, co-ordinates of noise sensitive locations, Noise Modelling Calculation Parameters, Map of Zones of Theoretical Visibility, Typographical Files, Site Photographic Records, Records of Monuments and Places within five kilometres of the turbines, Records of National Monuments within fifteen kilometres of the turbines, and a description of potentially affected structures recognised under the National Inventory of Architectural Heritage Structures.
114. There are twelve houses located within one kilometre of the proposed turbine locations, the closest being seven hundred and two meters. The report recites that the developer had actively engaged and consulted with local community in the months leading up to the making of the application.
115. The report includes (within chapter 2) an examination of alternative sites, designs and processes considered for the project including an examination of alternative land uses for the proposed development site.
116. In the chapter on human beings, population and human health, it is recognised that people as individuals and communities should experience no diminution in their quality of life from the direct or indirect impacts arsing from the development. The chapter examines issues which affect population, human health, employment and economic activity, land use, residential amenity, community facilities and services, tourism, property values, shadow flicker, noise and health and safety.
117. The report concludes (chapter 4) that following a consideration of residual impacts the proposed development will not result in any significant effects on human beings in the area surrounding it.
118. Biodiversity is considered in two separate chapters. Chapter 5 addresses flora and fauna and chapter 6 addresses birds.
119. Chapter 5 concludes that following a consideration of residual effects post mitigation the proposed development will not result in any significant effects on any of the identified key environmental receptors. Cross reference is made to the Natura Impact Statement which concludes that the proposed development either individually or in combination with other plans or projects is not likely to have significant effects the European sites which were assessed as part of the appropriate assessment process.
120. The report states also that the development will be constructed and operated in accordance with design, best practice and mitigation described in the application and that significant effects on ecology are not anticipated at any geographical scale on any of the key environmental receptors.
121. Chapter 6 concludes that no significant effects are predicted on birds due to direct habitat loss or displacement during the construction or operational phases of the development, and that the effects of decommissioning are predicted to be shorter and less obtrusive.
122. Chapter 7 examines the potential impacts of the project, including the grid connection, on soil, geological environment and land. A peat stability assessment undertaken at the site shows that the risk of peat failure is designated "trivial" and that that site has an "acceptable margin of safety", and that a similar assessment has been completed for the grid connection route for any areas where peat deposits occur. It concludes that with the implementation of mitigation measures outlined in the report no significant impacts on the soil and geology environment are predicted to occur.
123. Chapter 8 concerns the likely significant effects of the project on water in the receiving environment.
124. During each phase of the project namely, construction operation and decommissioning, construction related activities on the site have the potential to affect the hydrological regime or water quality at the site or in its vicinity. These potential effects generally arise from sediment input from run off or other pollutants such as hydrocarbons and cement-based compounds. These potential effects are said to be similar to those on any construction site.
125. Reference is made to drainage measures, pollution control and other preventative measures incorporated into the project design including a Surface Water Drainage Plan. It is stated that there will be no direct discharges to any existing natural water course from the project at construction, operation or decommissioning. The project will retain water within the bog for longer periods and therefore there will be no risk of downstream flooding.
126. The conclusion in this chapter is that the project presents no significant effects to surface water and ground water provided that mitigation measures identified in the report are implemented. Nor are any cumulative effects on the regional surface water catchment or ground water bodies anticipated from the windfarm or the grid connection.
127. Chapter 9 assesses the impact on air and climate. It is stated that the production of energy from wind turbines causes no direct emissions. Some minor short-term or temporary indirect emissions will be associated with the construction of the windfarm including vehicular and dust emissions. No significant effects on air quality are anticipated and this section of the report addresses also what it characterises as material carbon losses and savings from the development generally.
128. The conclusion in this part of the report is that the nature of the proposed development is such that once operational it will have a long-term moderate to positive impact on air quality and climate.
129. Noise and vibration are considered in chapter 10.
130. The report recognises that during the construction phase of the project there will be some impact on nearby noise sensitive properties due to noise emissions from site traffic and other activities. The construction phase will be temporary in nature and distances between main construction works and nearby noise sensitive properties are such that noise sources would not be excessively intrusive. Binding noise limits and hours of operation will be applied and when these are implemented together with noise and vibration control measures, noise and vibration impact is kept to a minimum.
131. In relation to the operational phase it is recognised that a new source of noise will be introduced to the soundscape. Reference is made to the 2006 Guidelines and to the existence of a closest occupied dwelling at 700 meters from the nearest turbine. It says that at the closest noise sensitive locations the effects will be "moderate" and for the majority of such locations the effects will be "slight". In the operational phase the noise levels associated with the proposed substation will be "imperceptible".
132. Chapter 11 considers the impacts for landscape and visual amenity. The assessment includes the use of visibility mapping, representative viewpoints and photomontage.
133. The report states that the proposed turbines have a "relatively small" footprint and that effects on the fabric of the landscape are generally localised, but will be more pronounced during the construction phase. The report submits that overall the landscape effects of the development on the site as well as the wider landscape will range from "slight to moderate".
134. In terms of visual effects the project is stated to be not within a high amenity area. Photomontages taken from nearby high amenity areas show projected views of the turbines. Whilst a number of the viewing points have visibility of the turbines, in all cases the turbines are an element of the view but "do not obscure, dominate or detract from main elements of the view". The overall effect is considered to range from "slight to moderate".
135. Effects on the archaeological and cultural heritage of the site and surrounding areas are assessed in chapter 12. The archaeological potential of the area is high but no new sites were noted within the areas proposed for development and no recorded archaeological or architectural assets were located on the site. The mitigation measures include ongoing archaeological testing when the turbine bases and roads at the site are being excavated. No significant cumulative impacts were identified.
136. In chapter 13 the effect of the project on traffic and transport during the construction and operational phase and potentially in any decommissioning phase is assessed. The construction phase is the critical period having regard to the additional traffic volumes that would be generated on the surrounding network including the abnormally large loads associated with the delivery of the wind turbines themselves. The effect on traffic of construction vehicles both during construction and during operation is explained. During the operational phase there will be a maximum of only two staff members employed at the site, causing only a negligible impact on traffic. The report concludes that the development will ultimately have only a negligible effect on the local road network once constructed. In respect of the construction phase analysis is undertaken of the different routes and junctions through which the site can be accessed and traffic management measures for large deliveries and other aspects of the construction phase are analysed.
137. The Report anticipates that it will take twenty-four days for delivery to the site of the components of the wind turbine plant. On these days the impact on traffic in the area will be moderate but temporary. It may be possible to reduce the effects by delivering large plant at night.
138. Chapter 13 also addresses telecommunications and aviation and summarises the engagement between the developer and relevant authorities including broadcasting and aviation and other appropriate consultees. The report concludes by stating that the development will have no significant effects on telecommunications or aviation.
139. Chapter 14 examines the interaction of all of the potential effects described in the preceding chapters. It identifies certain instances where there is potential for cumulative impacts as a result of the interaction of these factors. It concludes that where applicable any such impacts have been avoided by design or will be reduced by proposed mitigation measures which have been described in each of the earlier chapters.
Natura Impact Statement 140. The Natura Impact Statement was prepared also by MKO. It contains as an appendix an appropriate assessment screening report to identify European sites within a likely zone of impact of the project. Initially sites within a fifteen kilometre radius of the proposed development were identified. Using the "precautionary principle" sites located outside the fifteen kilometre buffer zone were also taken into account. European sites located more than 45 kilometres downstream of the proposed development were considered to be sufficiently remote from the development as not to be impacted by any phase of the project.
141. Nineteen designated European sites, comprising eleven special areas of conservation (SACs) and eight special protection areas (SPAs), were considered to be within the likely zone of impact. The screening report concluded that the proposed development, either individually or in combination with other plans or projects, would not have significant effects on seventeen of those sites.
142. In respect of two sites namely Lough Derravaragh SPA and Lough Iron SPA the report concluded that it could not be excluded beyond reasonable scientific doubt, that the project would have a significant effect.
143. The report summarises the result of desk studies and field surveys and assesses the likely significant effects on these two sites and proposed preventative measures to avoid direct and indirect impacts. The conclusion of the report is that the project, individually or in combination with other plans or projects, will not affect the integrity of these two or any European site. Both Mr. Sweetman and the Action Group challenge the adequacy of this report and claim that in relying on it the Inspector failed to perform an appropriate assessment compliant with the Habitats Directive.
144. The report of the Inspector recommends that permission for the project be granted subject to conditions. It runs to 166 pages. He outlines the background, describes the project, the planning history of the site and similar applications, the policy context, being European, national, regional and local, and the grounds of the appeal and observations made. He then performs his assessment under four headings namely, planning, environmental impact assessment, appropriate assessment and procedural legal and other considerations.
145. In relation to planning the Inspector concludes as follows:-
"7.2.8 I am satisfied that the proposed development is situated in a suitable area for wind energy development, including tall turbines and the proposed development would comply with national strategic objectives and policies in maximising Ireland's renewable energy resources and supporting Ireland's transition to a low carbon economy.
7.2.9 In conclusion the proposed development may be considered acceptable in principle in terms of policy context, subject to consideration of the proper planning and sustainable development of the area and to the carrying out of EIA and AA. Accordingly planning permission should not be refused for this reason. A detailed consideration of the visual impact of the proposed development, as well as impacts on residential amenity, cultural heritage and traffic safety and convenience are addressed as part of the EIA directly below."
146. In relation to environmental impact assessment the Inspector states the following:-
"7.3.1.4 I am satisfied that the EIAR has been prepared by competent experts to ensure its completeness and quality, and that the information contained in the EIAR and supplementary information provided by the developer, adequately identifies and describes the direct and indirect effects of the proposed development on the environment, and complies with Article 94 of the Planning and Development Regulations 2001-2018."
147. In relation to alternatives the Inspector records (7.3.2) that the EIAR states that candidate sites were reviewed under the relevant key criteria for the siting of wind energy developments and:-
"it was determined that taking into account the effects of the proposed development on the environment, as well as technical and policy related criteria the appeal site at Coole represents the optimum location for the proposed development, subject to detailed examination. Reasonable alternatives with respect to site design, development design (emphasis added), ancillary features, including grid connection route, access and land uses are also outlined within the EIAR. Within s. 11.8 of he EIAR addressing landscape, the applicant outlines that eighteen turbines were initially considered. However to increase separation distances from residential receptors, a revised layout with a reduced number of turbines was arrived at. Turbine locations were also revised to account for telecommunication signals. The applicant clarifies in s. 2.7.5.1 of the EIAR that the primary reason for discounting alternative renewal energy developments, such as solar and biomass, was primarily on the basis of the need to minimise the impact on the ongoing commercial peat operations, potential energy outputs and project costs. The option of avoiding the need for a borrow pit and serving the site via quarries only was assessed. Alternative renewable energy options and the "do nothing" alternatives were also explored. Environmental and other reasons for discounting options are provided.
"7.3.2.1 Having regard to the above I am satisfied that the matter of the examination of alternatives has been satisfactorily addressed."
148. The Inspector states that his examination of the likely significant direct and indirect effects on the environment has been made under each of the following headings, namely (a) population and human heath, (b) biodiversity, (c) land soil, water, air and climate, (d) material assets, cultural heritage and the landscape and (e) interaction of these factors.
149. In 7.3.8 of his report the Inspector states his reasoned conclusion on the significant effects on the environment. He states that the main significant direct and indirect effects of the proposed development on the environment are as follows (emphasis added in each case):-
ˇ "Impacts arising on population and human health as a result of shadow flicker on properties in the vicinity, which would be encountered during the operational phase and would be mitigated by a condition requiring "shut down days" for specific turbines below WEDG thresholds and the applicant's commitment to zero shadow flicker at residential receptors;
ˇ Impacts arising on population and human health as a result of noise and traffic nuisance during the construction phase, which would be mitigated by the temporary nature of the works phase, the use of specific roads, by traffic management and construction management measures, outlined in the Construction and Environmental Management Plan and by conditions restricting noise levels and requiring detailed traffic management proposals to be submitted;
ˇ Impacts arising on lands and soil as a result of excavating peat during construction during the operation phase (sic) could increase risk of peat slide. Mitigation measures are detailed within the EIAR and the Construction Environmental Management Plan for peat stability, excavation, storage and removal, including monitoring of any movement;
ˇ Impacts on Biodiversity including bats during operation as a result of collision with turbine blades, which will be mitigated by the positioning of the turbine blades sufficient distances from the riparian habitat, by seeking the advice from a qualified ecologist and following best practice and procedures during the operational phase;
ˇ Impacts on Biodiversity including birds during the construction works and during the operation as a result of collision with turbine blades, which will be avoided as the project would not result in significant displacement or loss of habitat for birds, by engaging a project ecologist, by the low risk of collision for bird species and by following best practice and procedures during the operational phrase;
ˇ Impacts on Hydrology and Water Quality arising from the potential indirect effects caused by increased runoff, such as soil erosion and sediment release into the receiving water courses, which would be mitigated by the project design features including attenuation measures and the absence of instream works, and the measures outlined in the Construction and Environmental Management Plan, which includes Watercourse Crossing Methodologies and an outline Site Drainage Management Plan;
ˇ Impacts on Landscape which would be locally significant from intermittent sections of the L-5575 local road and the R394 and R396 regional roads, and from residences therein, where screening is not available or maintained, and would not be fully avoided, mitigated or otherwise addressed by means of condition.
The Inspector continues in 7.3.8.2:-
ˇ "Notwithstanding the conclusion reached in respect of the inability of the proposed measures to fully mitigate the localised visual impact from sections of the L-5575 and R394 and R396 regional roads, and residences therein, it is considered that the environmental effects would not justify a refusal of planning permission having regard to the overall benefits of the proposed development, and in particular having regard to the context which is that of a highly moderated working landscape."
150. The applicants dispute the adequacy of the Inspector's assessment under a number of these headings, and I shall return those objections in more detail later.
151. Section 7.4 contains the Inspector's appropriate assessment for the purpose of the Habitats Directive. As required by Article 6(3) the Directive this is performed in two stages, the first of which is the screening assessment to determine whether the project, individually or in combination with any other plans or projects, is likely to have a significant effect on any European site.
152. The Inspector records that the screening report submitted by the developer initially identified sites within a fifteen kilometre radius of the proposed development. He notes that in addition "and using the precautionary principle" European sites located outside the fifteen kilometre buffer zone were also taken into account and assessed where potential pathways for impact were identified, specifically where hydrological connectivity could be established. Sites located more than 45 km downstream of the proposed development were excluded given the distance and dilution effect of intervening loughs within the Shannon catchment.
153. The Inspector continues in para. 7.4..6.2 "the sites identified for initial screening include upper Shannon river and Lakeland systems consisting of seven SACs (special areas of conservation) and eight SPAs (special protection areas) as well as another five SACs outside the upper Shannon catchment. I note their conservation objectives, the separation distance and the direction from the project sites in the tables below. Derragh Bog cSAC, c3.5 km from the turbine site was excluded from the applicant's Screening Report and I include this in my assessment".
154. The Inspector undertook his screening analysis in respect of fifteen special areas of conservation and candidate special areas of conservation. Twelve of these were screened out on the basis that they had no connectivity with the proposed works site, because in some cases they were upstream of the works and due to distance over ground between them and the proposed work sites, in other cases due to distance over ground and the absence of hydrological habitat connection or pathway.
155. In respect of one of these SACs, screened out by the developer, namely Garriskil Bog cSAC, the Inspector concluded that there is a downstream hydrological pathway to the proposed works, namely the River Glore. Therefore, indirect effects on supporting wetland habitat could not be excluded. It was therefore screened in by the Inspector for appropriate assessment.
156. Five special protection areas were considered by the Inspector. He screened out two of them, namely Lough Kinale and Derragh Lough SPA and Lough Sheelin SPA. on the basis that there was no hydrological connectivity between them and the proposed works site because they are upstream, and due to distance over ground between those sites and the proposed works. Mr. Sweetman claims that in adopting this screening recommendation the Inspector and the Board erred in law.
157. Screened in for this purpose were Lough Derravaragh SPA, Garriskil Bog SPA and Lough Iron SPA.
158. Mr. Sweetman claims that in relation to Lough Derravaragh, although screened in, the appropriate assessment itself was flawed.
159. The Inspector considered the "Qualifying Interests" listed for the sites screened in. He continues "a comprehensive examination of the likely effect on species other than those for which the European sites above are listed, to assess the effects on protected species or habitats found outside the boundaries of the European sites is provided as part of s.7.4.3 (6) (an erroneous reference to 7.3.4) to this report and I have had regard to this as part of the appropriate assessment."
160. Having described the potential effects on the species listed, and having referred to the biodiversity section in the Environmental Impact Assessment Report, the Inspector concludes his screening exercise as follows.
"7.4.7.1. Potential for significant indirect effects on the features of interest of the Lough Derravaragh SPA, Garriskil Bog SPA, Lough Iron SPA and Garriskil Bog 'SAC arising from impacts on water quality, hydromorphological impacts and the spread of invasive species during construction/decommissioning phases or during operation cannot be screened out. Furthermore the turbine site is within the core foraging range of Whooper Swan from Lough Derravaragh SPA and the loss, fragmentation and disturbance of habitat for this species requires further assessment. Accordingly a Stage 2 appropriate assessment is required to determine the potential of the proposed development to adversely affect the integrity of Lough Derravaragh SPA, Garriskil Bog SPA, Lough Iron SPA and Garriskil Bog SAC".
161. The Inspector performed his appropriate assessment in respect of the four sites screened in namely Garriskil Bog SAC, Lough Derravaragh SPA, Garriskil Bog SPA and Lough Iron SPA. He concluded that the development site and the location intended for grid connection works, is at a remove from each of these sites and that no direct impacts would occur. In terms of indirect effects he identified two key elements namely:-
(1) The potential for emissions to surface and the downstream potential for water pollution from sediment runoff from construction and decommissioning works, and;
(2) The potential loss or disturbance of bird species during construction, operation and decommissioning phases.
162. The conclusion of the Inspector is that the proposed development, individually or in combination with other plans or projects would not adversely affect the integrity of the four assessed sites, or any other European site in view of the conservation objectives of those sites. I shall return to this aspect in more detail when considering Mr. Sweetman's grounds.
163. The final part of the Inspector's Report addresses what he describes as "procedural, legal and other considerations. These arise under four headings namely:-
(1) Material Contravention of Westmeath County Council Policy P-WIN6;
(2) Project splitting;
(3) Aarhus Convention, and
(4) The applicant's legal interest.
164. In relation to material contravention of the County Development Plan, the Inspector states that policy P-WIN6, which provides for minimum distances between turbines and residences, is a general policy rather than a policy specific to the appeal site. He refers to the Board's power pursuant to s. 37(2)(b)(iii), in a case where a planning authority has decided to refuse permission on the grounds of material construction of a development plan, to grant permission "having regard to regional planning guidelines for the area, guidelines under s. 28, policy directives under s. 29, the statutory obligations of any local authority in the area and relevant policies of the Government, the Minister or any Minister of the Government". He continues:-
"7.5.1.2. The Government White Paper entitled 'Ireland's Transition to a Low Carbon Energy Future, 2015-2030' published by the Department of Communications, Energy and Natural Resources in December 2015 sets out that a 2020 national target of 40% renewables energy is likely to require a total of 3,500 to 4,000 MW of onshore renewables generation capacity. According to Eirgrid (2017) 2,600 MW of wind generation capacity was available in April 2017. Having regard to the targets for renewable energy set out in Government White Paper and the objectives of the 'National Planning Framework - Project Ireland 2040' to the strategic importance of wind energy in meeting these targets and to the scale and energy output from the proposed development (50 MW) which could make a significant contribution towards achievement of the said targets I am satisfied that the Board could also grant permission for the proposed development under the provisions of s. 37(2)(b)(iii) of the Act."
165. Under the subject of project splitting two aspects are considered. The Inspector records that the development is brought forward as a standalone project and does not set out a framework for the future development of other projects, including a project referred to as the "Greenwire" project promoted elsewhere by the developer's parent company and referenced by observers. He states: "the EIA Directive does not preclude projects from being subject to separate decisions provided that all the impacts have been properly assessed. In this instance due consideration has been given to the adjoining land uses, including the peat extraction as part of the cumulative effects, if any, and where appropriate, the EIAR also assesses the potential significant environmental impact which could arise from existing and other permitted developments in the area. I have referred to the cumulative impacts throughout my assessment."
166. The second issue raised under project splitting is that the connection to the national grid does not form part of the application. A grid connection option was put forward with a preferred route based on ESB/Eirgrid requirements. The Inspector notes that a consideration and an assessment of the grid connection is provided for in the EIAR and he states that he is satisfied that the detail provided is sufficient to enable the Board to assess the environmental impacts arising, and he states that this approach follows the High Court judgment in O'Gríanna & Ors v An Bord Pleanála [2015] IEHC 248. This aspect of the Board's decision is considered in more detail in Part 12(6) below.
167. In relation to the Aarhus Convention the Inspector says that he has noted a public consultation process conducted by the developer which is documented in the EIAR, which also provides for public participation.
168. In relation to the question of legal interest of the developer in the application site and the grid connection route the Inspector notes that a road opening licence will be required from the local authority. He is satisfied that the developer has provided sufficient evidence of legal interest in the site itself to make the application.
169. The Inspector recommended the imposition of twenty conditions to the decision, all but one of which were incorporated in the conditions imposed by the Board.
170. The Board issued its decision by Order made on 26 March 2019. It decided to grant permission for the development subject to nineteen conditions.
171. The Board stated that in arriving at its decision it had regard to the following:-
"(a) European, national, regional and local policy and targets with regard to the development of alternative and indigenous energy sources (including for renewable energy, and wind energy in particular) and the minimisation of emissions from greenhouse gases.
(b) The provisions of the Wind Energy Development Guidelines - Guidelines for Planning Authorities issued by the Department of the Environment, Heritage and Local Government in June 2006.
(c) The policies of the planning authority as set out in the Westmeath County Development Plan 2014 - 2020.
(d) The location of the windfarm site primarily on flat peatlands, which are acknowledged within the Wind Energy Development Guidelines - Guidelines for Planning Authorities and the Midland Regional Planning Guidelines 2010 - 2022 as having potential to accommodate large scale energy production in the form of wind farms.
(e) The planning history of the site.
(f) The character of the landscape in the area and the absence of ecological designations on the site.
(g) The characteristics of the site and of the general vicinity.
(h) The pattern of existing and permitted development in the area.
(i) The distance to dwellings and other sensitive receptors from the proposed development.
(j) The Environmental Impact Assessment Report submitted.
(k) The Appropriate Assessment Screening Report and Natura Impact Statement submitted.
(l) The submissions made in connection with the planning application.
(m) The report and recommendation of the Inspector."
172. In its screening for appropriate assessment the Board agreed with the assessment and conclusion carried out in the Inspector's report identifying the four European sites for which there is a likelihood of significant effects. The Board was satisfied that all other European sites could be screened out of any further assessment "because of the nature and conservation objectives of the European sites, the absence of relevant Qualifying Interests downstream of the works, the absence of an aquatic connection between the European Site and the windfarm site, or the location of the European site significantly outside of the core foraging range of birds detailed in the Scottish Natural Heritage Guidance Assessing Connectivity with Special Protection Areas (SPA's) (Version 3 - June 2016) document."
173. The Board considered the Natura Impact Statement and all other submissions and carried out an Appropriate Assessment of the implications of the development for the four European sites identified. The board considered that the information before it was adequate to allow the carrying out of an Appropriate Assessment.
174. The Board accepted and adopted the Appropriate Assessment carried out in the Inspector's Report and concluded "that the proposed development, by itself or in combination with other plans or projects, would not adversely affect the integrity of the European sites in view of the Sites Conservation Objectives."
175. In its Environmental Impact Assessment the Board stated that it had completed an assessment and agreed with and adopted the Inspector's assessment.
176. The Board identified the main significant direct and indirect effects of the proposed development on the environment and relevant mitigation measures. In doing so it deviates in small respects from the Inspector's description (emphasis added in each case):
ˇ "Impacts arising on population and human health as a result of noise and traffic nuisance during the construction phase, which would be mitigated by the temporary nature of the works phase, the use of specific roads, traffic management and construction management measures outlined in the Construction and Environmental Management Plan, and by conditions restricting noise levels and requiring detailed traffic management proposals to be submitted.
ˇ Impacts on lands and soil as a result of excavating peat during construction could increase risk of peat slide. Mitigation measures for peat stability, excavation, storage and removal including monitoring of movement, are detailed with the EIAR and the Construction and Environmental Management Plan.
ˇ Impacts on bats as a result of collision with turbine blades during operation which would be mitigated by the positioning of the turbine blades sufficient distances from the riparion habitat, by seeking the advice from a qualified ecologist and following best practice and procedures during the operational phase.
ˇ Impacts on birds during the construction works and as a result of collision with turbine blades during operation which would be avoided as the project would not result in significant displacement or loss of habitat for birds and, by engaging a project ecologist, by the low risk of collision for bird species and by following best practice and procedures during the operational phase.
ˇ Impacts on hydrology and water quality arising from the potential increased run-off, such as soil erosion and sediment release into the receiving watercourses, which would be mitigated by the project design features including in-stream works, and the measures outlined in the Construction and Environmental Management Plan, which includes Watercourse Crossing Methodologies and an outline Site Drainage Management Plan."
177. The Board concluded:-
"subject to the implementation of the mitigation measures set out in the EIAR and subject to compliance with the conditions set out below, the effects of the proposed development on the environment, by itself and in combination with other plans and projects in the vicinity, will be acceptable having regard to its overall benefits."
178. In relation to Proper Planning and Sustainable Development, the Board concluded as follows:-
"Notwithstanding Policy P-WIN6 of the Westmeath County Development Plan 2014-2020, it is considered that, subject to compliance with the conditions sets out below the proposed development would be in accordance with European energy policy, the National Planning Framework, the Regional Planning Guidelines for the Midland Region 2010-2022 and the Wind Energy Development Guidelines - Guidelines for Planning Authorities issued by the Department of the Environment, Heritage and Local Government in June 2006 and would-
ˇ make a positive contribution to the implementation of Ireland's national strategic policy on renewable energy and its move to a low energy carbon future.
ˇ have an acceptable impact on the landscape.
ˇ not seriously injure the residential or visual amenities of the area or of property in the vicinity.
ˇ not adversely affect the archaeological or natural heritage, and
ˇ be acceptable in terms of traffic safety and convenience.
The proposed development would, therefore be in accordance with the proper planning and sustainable development of the area."
179. The Board noted the planning authority's decision to refuse permission on the grounds of material contravention of the County Development Plan. Having regard to stated national policies, and the strategic importance of wind energy in meeting national targets for renewable energy it had decided to grant permission in accordance with s. 37(b)(iii) of the Act.
180. The conditions to the decision were the subject of many of the grounds stated by the Action Group. In themselves they are informative, among other things, as to the lengths to which the Inspector and the Board went to incorporate, where applicable, supervision, mitigation, monitoring and compliance measures consistent with the Inspector's analysis of the EIAR and the NIS. At the risk of repetition later in this judgment it is useful to recite all of them in full. In doing so I have inserted headings, and some points of emphasis for ease of reference.
Condition 1: Development in accordance with plans and particulars lodged and these conditions
"The development shall be carried out and completed in accordance with the plans and particulars lodged with the application except as may otherwise be 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 the development and the development shall be carried out and completed in accordance with the agreed particulars."
The provision in this and in other conditions for subsequent agreement with the planning authority features prominently in the Action Group's grounds. This form of condition is common, and in the course of submissions sight was lost by the Action Group of the fact that the more detailed and comprehensive the plans and specifications, the more tightly bound is the developer to that detail by virtue of the first sentence of this condition. The planning authority would not have jurisdiction to deviate by any subsequent agreement from those plans and specifications. A submission was made that the phrase "except as may otherwise be required in order to comply with the following conditions", created a hierarchy of conditions which would dilute the force of the obligation to construct the project in accordance with the plans and specifications lodged with the application and available for inspection by the public. I am not persuaded by that submission, as appears from the detailed analysis later.
Condition 2: 10 years to construct
"The period during which the development hereby permitted may be carried out shall be ten years from the date of this order."
Condition 3: 25 year life of project
"This permission shall be for a period of twenty five years from the date of the commissioning of the wind turbines. The wind turbines and related ancillary structures shall then be decommissioned and removed unless, prior to the end of the period, planning permission shall have been granted for their continuance for a further period."
The application was for a 30 year life.
Condition 4: Mitigation and monitoring
"The mitigation measures and monitoring commitments identified in the Environmental Impact Assessment Report and other plans and particulars, including the Natura impact statement, submitted with the planning application shall be implemented in full by the developer, except as may otherwise be required in order to comply with the following conditions.
Prior to commencement of development, the developer shall submit to and agree in writing with the planning authority, a schedule of these mitigation measures and monitoring commitments and details of a time schedule for implementation of the mitigation measures and associated monitoring."
The Action Group claim that the words "except as may otherwise be required in order to comply with the following conditions" had a "diluting effect" on the enforceability of this condition. I do not accept that submission, and this is examined in more detail later.
The second paragraph of this condition is a requirement to place in one schedule a list of the mitigation measures and monitoring commitments already contained in the application. It does not call for additional or new measures and commitments. The only additional information it calls for is the time schedule.
Condition 5: Environmental Management Plan
"Prior to commencement of development, a detailed Environmental Management Plan for the construction and operational stages shall be submitted to and agreed in writing with the planning authority, generally in accordance with the proposals set out in the Environmental Impact Assessment Report. The Environmental Management Plan shall incorporate the following:-
(a) A detailed plan for the construction phase, incorporating, inter alia, construction programme, supervisory measures, noise management measures, construction hours, and the management of construction waste.
(b) A comprehensive programme for the implementation of all monitoring commitments made in the application and supporting demonstration during the construction and operation period.
(c) Proposals in relation to public information and communication.
A record of daily checks that the works are being undertaken in accordance with the Construction Management Plan shall be kept for inspection by the planning authority."
The Action Group submit that this condition is impermissibly vague because it is unclear whether the "Environmental Management Plan" referred to in the first sentence of this condition or the "Construction Management Plan" referred to in the final sentence are one and the same and if so whether the Construction and Environmental Management Plan which accompanied the EIAR is something different again. While the use of those different phrases could have the potential to cause confusion, this is a classic instance of seeking confusion only to support the Action Group's case. The Construction and Environmental Management Plan (CEMP) which accompanied the EIAR contained extensive information of the type referred to in this condition, and itself provides for updating as the development would proceed and the maintenance of records for inspection. It is clear that this condition required an updating of that Plan and that it be submitted to the planning authority in accordance with the condition.
Condition 6: Landscaping and biodiversity scheme
"No development shall commence until a landscaping and biodiversity scheme has been submitted to and agreed in writing with the planning authority to suitably screen the proposed development over the life of the facility.
The scheme shall comprise a planting plan and schedule".
The condition describes in detail the matters to be contained in that plan. The condition continues:
"All of the hard and soft landscaping works shall be carried out in accordance with the approved scheme unless otherwise agreed in writing with the planning authority.
Any trees/ shrubs which within a period of five years from the completion of the approved landscaping scheme fails to become established, die, become seriously diseased, or are removed or damaged shall be replaced in the following planting season with equivalent numbers, sizes and species as those originally required to be planted unless otherwise agreed in writing with the planning authority."
Condition 7: Design requirements
"The following design requirements shall be complied with:-
(a) The hub height shall not exceed 105 metres, the tip height shall not exceed 175 metres and the blade length shall not exceed 70 metres. Details of the turbine design, and hub height, tip height and blade length complying with these limits shall be submitted to and agreed in writing with the planning authority prior to commencement of the development. The wind turbines including tower and blades, shall be finished externally in a light grey colour.
(b) Cables within the site shall be laid underground.
(c) The wind turbines shall be geared to ensure that the blades rotate in the same direction.
(d) No advertising material shall be placed on or otherwise be affixed to any structure on the site without a prior grant of planning permission.
(e) Within one year of the commissioning of the turbines, the link road element of the development shall cease to be used and shall be decommissioned and reinstated or covered and grassed, in compliance with the landscaping and biodiversity scheme required under condition 6 of this order."
The Action Group claim that the size limits stipulated for turbines in paragraph (a) of this condition do not comply with the requirement that plans and specifications must describe the exact dimensions of every structure. The plans and specifications of turbines are in fact specific as to size. I return to this subject in Part 12.
Condition 8: Grid connection not permitted by this decision
"This permission shall not be construed as any form of consent or agreement to a connection to the national grid or to the routing or nature of any such connection.
Condition 9: Noise
The operation of the proposed development, by itself or in combination with any other permitted wind energy development, shall not result in noise levels when measured externally at nearby noise sensitive locations, which exceed:-
(a) between the hours of 07:00 and 23:00
(i) The greater of 5 dB (A) L90, 10 min above background noise levels, or 45 dB (A) L90, 10 min at wind speeds of 7 meters per second or greater.
(ii) 40 dB (A) L90, 10 min at all other wind speeds.
(b) 44 dB (A) L90, 10 min at all other times.
where wind speeds are measured at 10 meters above ground level.
Prior to commencement of development the developer shall submit to and agree in writing with the planning authority a noise compliance monitoring programme for the subject development, including any mitigation measures such as the de-rating of particular turbines. All noise measurements shall be carried out in accordance with ISO Recommendation R 1996 "Assessment of Noise with Respect to Community Response" as amended by ISO Recommendations R 1996-1. The results of the initial noise compliance monitoring shall be submitted to, and agreed in writing with, the planning authority within six months of commissioning of the wind farm."
(a) "Shadow flicker arising from the proposed development, by itself or in combination with other existing or permitted wind energy development in the vicinity, shall not exceed 30 hours per year or 30 minutes per day at existing or permitted dwellings or other sensitive receptors.
(b) The proposed development shall be fitted with appropriate equipment and software to control shadow flicker in accordance with the above requirement. Details of these control measures shall be submitted to and agreed in writing with the planning authority prior to the commencement of development.
(c) A report shall be prepared by a suitably qualified person in accordance with the requirements of the planning authority, indicating compliance with the above shadow flicker requirements at dwellings. Within 12 months of commissioning of the proposed wind farm, this report shall be submitted to, and agreed in writing with the planning authority. The developer shall outline proposed measures to address any recorded non-compliances, controlling turbine rotation if necessary. A similar report may be requested at reasonable intervals thereafter by the planning authority."
Condition 11: Telecommunications
"In the event that the proposed development causes interference with telecommunication signals, effective measures shall be introduced to minimise interference with telecommunication signals in the area. Details of these measures, which shall be at the developer's expense, shall be submitted to and agreed in writing with, the planning authority prior to commissioning the turbines and following consultation with the relevant authorities."
Condition 12: Aeronautical
"Details of any aeronautical requirements shall be submitted to and agreed in writing with the planning authority prior to commencement of development. Prior to commissioning of the turbines, the developer shall inform the planning authority, the Irish Aviation Authority and the Department of Defence of the "as constructed" tip heights and coordinates of the turbines."
Condition 13: Roads and bridges
(a) "Prior to commencement of development, details of the following shall be submitted to and agreed in writing with the planning authority:
(i) a Transport Management Plan.
(ii) a condition survey of the roads and bridges along the haul routes to be carried out at the developer's expense by a suitably qualified person, both before and after construction of the windfarm development.
(iii) detailed arrangements whereby the rectification of any construction damage which arises shall be completed to the satisfaction of the planning authority.
(iv) detailed arrangements for the protection of bridges to be crossed.
(v) detailed arrangements for temporary traffic arrangements/control on roads.
(vi) a phasing programme indicating the timescale within which it is intended to use each public route to facilitate construction of the development.
(b) Within three months of the cessation of the use of each haul route to transport material to and from the site, a road survey and scheme of works detailing works to repair any damage to these routes shall be submitted to the planning authority for agreement.
(c) All works arising from the aforementioned arrangements shall be completed at the developer's expense, within 12 months of the cessation of each road's use as a haul route for the proposed development."
Condition 14: Archaeology
"The developer shall facilitate the archaeological appraisal of the site and shall provide for the preservation, recording and protection of archaeological materials or features which may exist within the site. In this regard the developer shall:
(a) notify the relevant planning authority in writing at least four weeks prior to the commencement of any site operation (including hydrological and geotechnical investigations) relating to the proposed development, and
(b) employ a suitably qualified archaeologist prior to the commencement of development. The archaeologist shall assess the site (including by pre-development archaeological testing) and monitor all site development works.
The assessment shall address the following issues:
(i) the nature and location of the archaeological material on the site, and
(ii) the impact of the proposed development on such archaeological material.
A report, containing the results of the assessment, shall be submitted to the planning authority and, arising from this assessment, the developer shall, prior to commencement of construction works, agree in writing with the planning authority details regarding any further archaeological requirements (including, if necessary, archaeological excavation). In default of agreement on any of those requirements, the matter shall be referred to An Bord Pleanála for determination."
Condition 15: Decommissioning and reinstatement
"On full or partial decommissioning of the wind farm, or if the wind farm ceases operation for a period of more than one year, the turbines concerned and all decommissioned structures shall be removed, and foundations covered with soil to facilitate revegetation. These reinstatement works shall be completed to the written satisfaction of the planning authority within three months of decommissioning or cessation of operation."
Condition 16: Rock
"Rock from the borrow pit shall be won only for the purposes of road/hardstand construction of the site, and shall not be sold or transported off site without a prior grant of planning permission."
Condition 17: Security for public road reinstatement
"Prior to commencement of the development, the developer shall lodge with the planning authority a cash deposit, a bond of an insurance company or other such security as may be acceptable to the relevant planning authority to secure the reinstatement of public roads which may be damaged by the transport of materials to the site, coupled with an agreement empowering the relevant planning authority to apply such security or part thereof to the satisfactory reinstatement of the public road. The form and amount of the security shall be as agreed between the relevant planning authority and the developer or, in default of agreement, referred to the Board for determination."
Condition 18: Security for site reinstatement
"Prior to commencement of development, the developer shall lodge with the relevant planning authority a cash deposit, a bond of an insurance company or such other security as may be acceptable to the relevant planning authority to secure the satisfactory reinstatement of the site upon cessation of the project, coupled with an agreement empowering the relevant planning authority to apply such security part thereof to such reinstatement. The form and amount of the security shall be as agreed with the relevant authority or in default shall be referred to the Board."
Condition 19: Development Contribution Scheme
"The developer shall pay to the planning authority a financial contribution in respect of public infrastructure and facilities benefiting development in the area of the planning authority that is provided or intended to be provided by or on behalf of the authority in accordance with the terms of the Development Contribution Scheme, made under s. 48 of the Act. The contribution shall be paid prior to commencement of the development or in such phased payments as the planning authority may facilitate and shall be subject to applicable indexation provisions of the scheme at the time of payment. Details of the application of the terms of the Scheme shall be agreed between the planning authority and the developer, or in default of agreement the matter shall be referred to the Board"
181. One of the most fundamental principles of judicial review, and which governs review of decisions of planning authorities and of An Bord Pleanála, is that the Oireachtas has vested the power to make such decisions in those authorities. They are the bodies with the expertise and experience to make such decisions. It is only where their decision is so irrational that no reasonable authority or decision maker would have made it that the court should intervene. As it was put by Finlay C.J. in O'Keefe v An Bord Pleanála [1993] 1 I.R. 39, "it is necessary that the applicant should establish to the satisfaction of the court that the decision making authority had before it no relevant material which would support its decision" before a court would quash its decision.
182. In People Over Wind v An Bord Pleanála & Ors. [2015] IEHC 271 Haughton J. cited with approval the decision of McMahon J. in Klohn v An Bord Pleanála [2008] IEHC 111 where the court said:-
"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."
183. In Carroll v An Bord Pleanála & Ors. [2016] IEHC 90 Fullam J. was asked to consider whether there should be any departure from the O'Keeffe test in the context of decisions relating to environmental assessment. He stated:-
"The preponderance of authority is against imposing a greater level of scrutiny than is currently required under Irish judicial review law in respect of decisions relating to issues of environmental assessment. An applicant faces an uphill task in establishing substantial grounds warranting a departure from the O'Keeffe test".
184. The test for such scrutiny was considered also by the House of Lords in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 where Lord Diplock put it as follows:-
"It is not for any court of law to substitute its own opinion for his (the Secretary of State); but it is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the Council he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider."(citing Wednesbury).
Or, put more compendiously, the question for the Court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly."
185. Applying these and other judgments, the following principles inform the court's approach to this case.
(1) Decisions of the Board enjoy a presumption of validity until the contrary is shown (Carroll & Others v An Bord Pleanála & Others [2016] IEHC 90)
(2) The onus of proof to establish that the Board did not consider relevant matters and considered irrelevant matters lies on the applicant (Lancefort Ltd. v An Bord Pleanála [1999] 2 IR 270, McGuinness J.)
(3) The circumstances in which the court can intervene on the basis of irrationality are limited and rare (O'Keeffe v An Bord Pleanála [1993] 1 IR 39, Finlay C.J.)
(4) The court should not interfere with the decision of an administrative decision-making body mainly on the grounds that it is satisfied that it would have reached different conclusions or that the case against decision made is stronger than the case for it. (O'Keeffe).
(5) The legislature has placed questions of planning, questions of the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the planning authorities and the Board which are expected to have special skill, competence and experience in planning questions. The Court is not vested with that jurisdiction, nor is it expected to, nor can it, exercise discretion with regard to planning matters. (O'Keeffe).
(6) 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. (Klohn)
(7) The limited test of substantive review on grounds of irrationality, or the manifest error test, set in O'Keeffe, continues to bind the court in its review of decisions of the Board, including cases requiring environmental impact assessments (Ratheniska v An Bord Pleanála [2015] IEHC 18, Haughton J.)
(8) When it comes to assessment under the Environmental Impact Assessment Directive and the Habitats Directive two different levels of "directing the outcome" apply. (Kelly v An Bord Pleanála [2014] IEHC 400).
(9) The obligation under the Environmental Impact Assessment Directive, as transposed by amendments to Part 10 of the Act of 2000 as amended is to perform an environmental impact assessment before making a decision to grant or refuse consent on an application for a development which is likely to have significant effects on the environment. Neither the Directive or the Act dictates what is to be defined as a "positive" or "negative" assessment or the result which should follow. The obligation of the planning authority and the Board is to perform the assessment in accordance with the Directive and to take it into account in making its decision. Once this is done the authority has jurisdiction to grant or refuse permission, and must state its reasons for the decision in light of the assessment (Kelly v An Bord Pleanála).
(10) The obligation conferred by the Habitats Directive, as transposed in part XAB of the Act of 2000 as amended is firstly to ascertain, in respect of any project not directly connected or necessary to the management of a designated European site, if there are any designated European Sites on which the project is likely to have a significant effect. Where any such sites are identified the planning authority and Board is obliged to perform an appropriate assessment and to determine whether the project will adversely affect the integrity of such sites. Only where the Board determines that the project will not adversely affect the integrity of the site can it grant development consent (subject to an exception provided for in Article 6.4 of the Directive which is not relevant to this case) (Article 6.3, Habitats Directive).
(11) This important difference in terms of the outcomes of assessments was expanded upon by Finlay Geoghegan J. in Kelly v An Bord Pleanála:
"As appears, the respective effects on the decision making process of the Board of the environmental impact assessment and the appropriate assessment (where both have to be carried out by the Board prior to taking its planning decision) are quite different. In carrying out an environmental impact assessment, the Board is required to conduct an examination, analysis and evaluation of and identify the direct and indirect effects of the proposed developments on the matters specified in section 171 A(1). However, the outcome of that examination, analysis, evaluation and identification informs rather than determines the planning decision which should or may be made. The Board has jurisdiction in its discretion to grant consent regardless of the outcome of the EIA though of course it impacts on how it should exercise its discretion.
In contrast, the Board, in carrying out an appropriate assessment under Article 6(3) and s. 177V, is obliged, as part of same, to make a determination as to whether or not the proposed development would adversely affect the integrity of the relevant European site or sites in view of its conservation objectives. The determination which the Board makes on that issue in the appropriate assessment determines its jurisdiction to take the planning decision. Unless the appropriate assessment determination is that the proposed development will not adversely affect the integrity of any relevant European site, the Board may not take a decision giving consent for the proposed development unless it does so pursuant to Article 6(4) of the Habitats Directive." (Article 6.4 is not relevant in this case).
This important distinction between the informative and influential nature of an environmental impact assessment on the one hand and the 'directional' and in some cases determinative, status of findings under appropriate assessment for the Habitats Directive was lost in many of the submissions which were made in these cases.
(15) The level of detail and precision including the requirement for definitive findings and conclusions removing scientific doubt as to potential adverse effects on a site screened in was described in some detail by Finlay Geoghegan J. in Kelly, endorsed by Clarke J. in Connelly v An Bord Pleanála [2018] IESC 31 and by McDonald J. in Sliabh Luachra Against Ballydesmond Windfarm Committee v An Bord Pleanála & Others [2019] IEHC 888. McDonald J. had the following to say in Sliabh Luachra:-
"It is now well established that there are quite stringent requirements that must be complied with where a stage 2 appropriate assessment is carried out. Those requirements have been the subject of a number of decisions of the CJEU which, in turn, have been applied in Ireland in Kelly and in Connolly. It is clear from [those judgments] that there are four requirements which must be satisfied namely:-
(a) In the first place, the appropriate assessment must identify, in the light of the best scientific knowledge in the field, all aspects of the development project which have the potential, either as a consequence of the development itself or in combination with other plans or projects to affect the European site in the light of its conservation objectives;
(b) Secondly, there must be complete, precise and definitive findings and conclusions regarding the previously identified potential effects on any European site. This requires findings to be made following appropriate analysis and evaluation each in the light of the best scientific knowledge in the field. The findings and conclusions cannot have any lacunae or gaps;
(c) Thirdly, on the basis of those findings and conclusions, the planning authority, if it is to grant permission for the development, must be able to determine that no reasonable scientific doubt remains as to the absence of the identified potential effects;
(d) Fourthly, where these requirements are satisfied, the planning authority may determine that the proposed development will not adversely affect the integrity of any relevant European site and will not be prevented from granting permission on Article 6 grounds."
(16) The decision should not be made by reference to a purely hypothetical approach to risk founded on mere suppositions which are not scientifically verified. McDonald J. put it thus,
" As an expert body, the respondent is in a much better position than the court to form a view as to whether a risk which was described by an expert as no more than 'negligible', is sufficiently remote to be discounted in the context of an Article 6 (3) appropriate assessment of risk. In my view, having regard to the approach taken in Monsanto, the respondent was not required to be absolutely certain that a bog movement or landslide would never occur in the future. The relevant standard is reasonable doubt."
(17) A planning authority and the Board are required to state the reasons for their decisions. Reasons must be capable of being read, either in the Board's decision, the Report of the Inspector, or in documents referred to in that decision or Report, or from the context of the decision, provided it is sufficiently clear what they are without an exhaustive search for the reasons. (Connelly v An Bord Pleanála & Others [2018] IESC 31).
(18) Where environmental impact assessment is required the decision and reasons must be sufficiently clear to enable an interested party to consider whether it can challenge the decision on the grounds that no valid or adequate EIA was performed. (Article 8(a) of the Directive and Connelly v An Bord Pleanála).
186. I now turn to the separate cases of Mr. Sweetman and the North Westmeath Turbine Action Group. Mr. Sweetman's case was heard first.
187. Three of the grounds stated by Mr. Sweetman in his application were not pursued when the matter came to hearing. They warrant a brief description for context purposes.
188. Firstly, in para. E 11 Mr. Sweetman claimed that the decision was made in material contravention of the Westmeath County Development Plan. This is a reference to the separation distances between wind turbines and homes identified in P-WIN 6.
189. Section 37 (2) of the Act of 2000 provides that the Board in determining an appeal may 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. Section 37 (2)(b) provides as follows:-
"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 para. (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 planning guidelines for the area, guidelines under s. 28, policy directives under s. 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."
190. The board order of 26 March 2019 noted that the planning authority had refused permission on the grounds only that the proposed development would materially contravene P-WIN6. The Board exercised its power in s.37(2) b(iii) and decided to grant permission having regard to:-
ˇ The Government White Paper entitled "Ireland's transition to a low carbon energy future, 2016-2030" published by the Department of Communications, Energy and Natural Resources in December, 2015, which sets out that a 2020 national target of 40% renewals energy is likely to require a total of 3,500 to 4,000 megawatts of onshore renewals generation capacity,
ˇ The confirmation by Eirgrid (2017) that 2,600 megawatts of wind generation capacity was available in April 2017,
ˇ The strategic importance of wind energy in meeting this target, and the scale and energy output from the proposed development (50 MW),
191. The board decided to grant permission, in accordance with the provisions of s. 37(2)(b)(iii) of the 2000 Act, having considered that the proposed development would make a significant contribution towards the achievement of this government target.
192. The position in relation to material contravention was therefore clearly addressed in the decision of the Board, which was exercising its power pursuant to s. 37(2)(b)(iii).
193. Secondly, Mr. Sweetman sought declarations (paras. D6 & 7) that the second and third named respondents, namely the State, failed to adequately transpose the EIA Directive and the Habitats Directive.
194. On the fourth day of the hearing counsel for Mr. Sweetman, following confirmation from the State that it would not apply for costs against Mr. Sweetman, confirmed that the transposition case against the State was withdrawn.
195. In its Statement of Opposition, the State had submitted that the Statement of Grounds failed to provide any particulars of the grounds for relief sought against it, and therefore did not comply with the requirements as to particulars contained in O. 84 r. 20 (3) of the Rules of the Superior Courts. Having regard to the withdrawal, I was not required to make any determination on this issue, but it is appropriate to record that the State respondents' objection that Mr. Sweetman's Statement of Grounds did not contain particulars of that allegation was valid.
196. Thirdly, in the Statement of Grounds a number of references were made to the potential impact of the development on the stability of the bog at the wind farm site. It is alleged in paras. E 23, 24 and 25 that the Board had no information before it to allow it to take account of the subsurface and underground conditions during construction that may lead to the bog slipping or bursting during the piling activity associated with the construction of turbines or caused by the effect of the operation of turbines. The complaint was made in para. E 47 that the board failed to adequately consider the risk to the environment and human health of bog slippages or bog bursts during construction and/or operation. On the third day of the hearing counsel for Mr. Sweetman confirmed that he was not pursuing this ground. This concession was stated by counsel to be made principally because he had insufficient time in the hearing to do so. When pressed he confirmed that there was a dispute regarding the admissibility of evidence on the subject and Mr. Sweetman had decided not to pursue the point in this case.
197. A separate question arose as to the cumulative effect of the development with commercial peat extraction operations at the site to which I shall return in Part Twelve.
198. Mr. Sweetman's grounds relating to the EIA Directive may be summarised as follows:-
(1) Failure to request from the developer information identified by the DAU in its submission of 12 December 2017.
(2) Inadequacy of assessment in relation to bats and in particular the Leisler bat.
(3) Failure to consider the operation of commercial peat extraction on the site and in the locality outside of the site.
(4) Failure to consider cumulative effects and impacts, although no particulars are given of this failure.
(5) Failure to consider alternatives, including the alternative of using lower turbines in accordance with the adopted policy of Westmeath County Council.
199. On the day it decided to refuse permission for the development, namely 12 December 2017, the Westmeath County Council received a letter from the DAU.
200. When the developer submitted its previous, first, application to the planning authority (ref. 17/6177), the DAU had, on 13 July 2017, made a longer and more detailed submission.
201. The DAU's first submission (13 July 2017) was made under the headings of Archaeology and Nature Conservation.
202. In relation to nature conservation submissions were made regarding the potential effects of the development under the following headings:-
(1) Impact on water quality, hydrology,
(2) Impact on birds,
(3) Bats,
(4) Hedgerow loss,
(5) Impact on invertebrates,
(6) An alternative forestry site in Offaly,
(7) The current planning and licensing status of the site. This is a reference to then pending judicial review proceedings concerning the planning status of ongoing peat extraction by commercial operators at the site
(8) Rehabilitation of the raised bog site, and
(9) Consideration of alternatives.
203. The most relevant of these issues for Mr. Sweetman's case were the following.
204. Firstly, the Department submitted that the studies completed as part of the EIAR to determine local and international bird migration over the proposed site were inadequate and defective. In its second submission made on 12 December 2017 the concern under this heading was reduced to an expression that the Department was of the view that the studies had "limitations". It was stated that the work focused primarily on daytime dusk and dawn surveys, whereas migration of certain species could also take place at night.
205. Secondly, the Department submitted that there were limitations to bat surveys in that they were only carried out at ground level and it had been noted that species such as the Leisler bat mostly fly at a high altitude. This observation was repeated in the second submission where it was noted that the activity of high-flying species such as Leisler bat may have been under estimated.
206. In the first submission the Department expressed the view that the proposed development had the potential to cause an adverse effect on a number of birds species listed under Annex 1 of the EU Birds Directive, on wild birds protected under the Wildlife Acts 1976 - 2012, on the habitat and population of bats listed under the Habitats Directive and protected under the Wildlife Acts, on the habitats of species of fish and amphibians and had the potential to cause an adverse impact on echo systems and biodiversity in general, including local water courses, hedgerows and scrub.
207. The Department stated that these effects could be caused by water contamination, dust impacts, barriers to movement particularly in relation to bird flight lines, collision risk for birds, bats and invertebrates, nighttime collision risk, physical destruction of habitats, hydrological changes, and habitat fragmentation.
208. Many of these concerns formed part of the Westmeath County Council request for further information issued to the developer on the 03 August 2017, which the developer says were addressed in the second planning application.
209. The submission of 12 December 2017 by the Department was much shorter than its previous submissions. It identified separately issues relating to the Natura Impact Statement and the Environmental Impact Assessment Report.
210. In relation to the NIS the Department stated the following:-
(1) That there was no clear rationale as to why a parameter had been adopted of fifteen kilometres for the zone of influence of the project.
(2) That there was a lack of consideration made of bird migration pathways within the NIS.
(3) That bird migration can take place at night and the employment of technologies designed for that task may provide a clearer picture.
(4) The 2km radius vantage point surveys carried out at dusk may not provide accurate bird data as light levels reduce.
(5) That the potential cumulative effects of the proposed development on aquatic echo systems combined with the existing peat extraction operations are "of concern". [3]
211. In relation to environmental impact assessment, issues were identified by the Department under the following headings, namely, water quality, birds, bats and hedgerow loss. In relation to water quality the Department expressed concerns of potential cumulative effects on aquatic echo systems combined with the existing peat extraction operations. It observed that uncertainty existed about the management of areas of exposed peat.
212. In relation to birds the Department expressed the view that the studies completed to determine local and international bird migration over the proposed site have "limitations". It noted that the study focused primarily on daytime, dusk and dawn surveys whereas migration of certain species could also take place at night. It was also observed in relation to birds that the assessment "should ensure" a full consideration has been given to the Greenland White Fronted Geese migrating between the Wexford Slobs in Ireland and Greenland and other migratory species.
213. In relation to bats the Department stated the following:-
"There are limitations to the bat surveys which were carried out, in that they were only carried out at ground level. Species such as Leisler bat fly at a high altitude and as stated in the EIS no bats surveying at height was undertaken and therefore activity by high flying species such as Leisler bat may have been underestimated."
214. In relation to hedgerow loss the Department noted the intention to remove 288 meters of hedgerow and 160 meters of tree lines during the excavation of the proposed borrow pit. The Department observed that no plans were shown within the documentation to mitigate for this loss and no proposal to reinstate hedgerows removed were observed and that Article 10 of the Habitats Directive requires member states to retain stepping stones and wildlife corridors in the landscape.
215. In s. 3.3 of his Report the Inspector refers to the observations of prescribed bodies including the DAU. Although he does not quote the DAU letter of 12 December 2017, in paragraphs 3.3.1 and 3.3.2 he summarises the DAU observations and he addresses separately the concerns expressed by it.
216. In s. 7.3 of his Report as part of his Environmental Impact Assessment, the Inspector refers again to the submissions made on the appeal by prescribed bodies and observers and by the developer set out earlier in the Report including the submissions of the DAU. He addresses a number of these in more detail later in his report but he expresses the following central conclusion in para. 7.3.1.4 where he states:-
"I am satisfied that the EIAR has been prepared by competent experts to ensure its completeness and quality, and that the information contained in the EIAR and supplementary information provided by the developer, adequately identifies and describes the direct and indirect effects of the proposed development on the environment and complies with Article 94 of the Planning and Development Regulations 2001 - 2018."
217. In relation to appropriate assessment the Inspector records at para. 7.4.2.1: "I have considered the applicant's Appropriate Assessment Screening Report (Appendix 1 to the NIS) which provides a description of the surrounding area and the proposed development. I have had regard to the Site Synopsis and conservation objectives for the relevant Natura 2000 sites and to the entirety of the application documentation including submissions received." (emphasis added).
218. The fact that the Inspector did not recite verbatim and expand on the finding regarding matters identified by the DAU does not mean that he erred in law or acted irrationally or that he failed to consider the DAU submission. On the contrary, it is clear that he had regard to that submission in reaching his conclusions.
219. Bats were considered by the Inspector at paras. 7.3.4.8 through to 7.3.4.11 and it is necessary to quote this in full (adding emphasis):-
"7.3.4.8 Bat surveys were conducted in 2013 and 2016, entailing a mix of roost, manual transects and fixed-point surveys. Observers to the appeal assert that in the absence of high level bat surveys a precautionary approach should be adopted regarding bat protection. As the turbine site is not dominated by forest and as there is not a minimum requirement for a project of this nature to do so, surveys at height were not considered necessary by the applicant. The woodland and forestry, as well as the riparian and associated riparian habitats were assessed as having moderate suitability for commuting or forging bats. No bat roosts were identified within the site. In 2013, three bat roosts sites were identified within 2.2 kilometres and 3.47 kilometres of the site and a mating/lekking site (for Leisler bat) was identified 0.8 kilometres from the site. No significant effects on roosting bats are anticipated.
7.3.4.9 The bat survey results are included in Appendix 5-4 to the EIAR and revealed that bat activity levels were quite low and that the greatest level of bat activity in the study area was among the vegetative fringes of the turbine site, which is dominated by conifer plantations, and also along the rivers and associated riparian habitat. Bats only occasionally crossed the open bog habitats where the turbines would be sited. Common Pipistrelle and Soprano Pipistrelle were the most frequently recorded, while unidentified Pipistrelle, Leisler, Myotis, Brown long-eared and Nathusius Pipistrelle bats were also recorded. Turbine 05 is the only turbine proposed within the conifer planation and the turbine swept path for this turbine will marginally overlap the River Glore riparian habitat. Proposed works off the main turbine site would involve loss of trees and hedgerow that have moderate potential for forging bats.
7.3.4.10 Standard features post construction, including monitoring and fatality searches are proposed. Given the low level of bat activity and the proposals to fell commercial plantations on site, potential for significant impacts to arise on bat populations is unlikely. However, I note that Leisler's bat is a high risk bat species in relation to wind turbines, as it is a higher flyer than other Irish bat species, therefore, there is potential for significant impacts on this bat species. In the absence of high-level surveys, the presence of Leisler's bat on site and the location of turbine T05 with turbine sweep area marginally overlapping the River Glore and associated riparian habitat, the positioning of turbine T05 requires particular attention. Prescribed buffer distances between turbines and habitats are referenced in Appendix 5-4 to the EIAR, including those within the Natural England Guidelines 'Bats and Onshore Wind Turbines Interim Guidance' [2014], which require a setback of at least 50 meters (emphasis added) between the tip of any blade and habitat features such as tree or hedgerows. Based on drawing 09-39-31 illustrating the typical wind turbine front elevation, approximately 56 metres would be maintained between the blade tip to turbine T05 and the riparian habitat, which I note features trees of less than five meters within the turbine sweep area. I am therefore satisfied that a reasonable clearance distance between the habitat features and the turbines would be provided and a significant impact would not arise. The applicant refers to the need to monitor the effectiveness of prescribed buffer distances as part of the post construction elements of the proposal.
7.3.4.11 On the basis of the detail provided I accept the assessment that the loss of the bog areas for turbines and associated infrastructure would have negligible impacts on local bat populations, while the loss of scrub and tree line habits, dominated by conifer plantations, would only marginally reduce bat forging and commuting opportunities and that potential for barotrauma or collision is low, with adequate separation distances achieved between turbine blades and habitat features. Monitoring of bat activity is proposed as part of the proposed developments.
220. The Bat Survey Report referred to by the Inspector is contained in Appendix 5 - 4 of the EIAR submitted by the developer. Remarkably, Mr. Sweetman's Statement of Grounds makes no reference to this Report.
221. The report details surveys undertaken by MKO. One of the ecologists employed by MKO is Una Nealon. Ms. Nealon holds a BSE (Hons) in Environmental Science from National University of Ireland, Galway. She holds also a PHD in ecology, for research on systems to predict and assess bat presence at wind turbines in Ireland. In her affidavit sworn in these proceedings on 20 September 2019, Ms. Nealon states that her PHD research was the first in Ireland to examine the potential risk to bats at wind turbines in Ireland. She identified Irish bat populations at highest risk of collision and the influence of timing, weather conditions and landscape and habitat requirements on bat presence at wind turbines.
222. The Bat Survey Report describes in the first place the manner in which wind energy developments can impact wildlife and says that bat fatalities have been reported at wind energy facilities around the world, giving rise to concern about the cumulative impacts of such developments on bat populations. The report refers to a number of guidelines for surveying bats at wind energy developments produced in Ireland, Europe, and U.K, which inform the design of bat surveys at potential wind energy sites. Published advices and guidelines include the following:-
ˇ The report of the Advisory Committee to the EUROBATS Agreement, to which Ireland is a signatory which produces guidelines for a consideration of bats and windfarm projects (2015).
ˇ The Bat Conservation Trust Bat Survey Good Practice Guidelines (2012), (which as it happens were updated in January 2019 being a date between the issue of the Inspector's Report and the decision of the Board in this case).
ˇ Bat Conservation Ireland Wind Turbine/Windfarm Development Bat Survey Guidelines (2012)
ˇ Natural England's Guidelines on Bats and Onshore Wind Turbines; Interim Guidance (2014).
223. The Report states that the authors consulted the above and other surveys and sources on bats surveys and guidance published in Ireland, Britian and elsewhere.
224. In preparing the survey a scoping document was circulated to consultees in February 2017 as part of which Irish conservation groups were contacted and Bat Conservation Ireland was invited to comment.
225. The study area identified for the survey was the wind turbine site and a buffer of 200 meters.
226. An initial desktop study was undertaken by reference to bat surveys conducted in 2013 and the National Bat Database of Ireland obtained by Bat Conversation Ireland. A search of that database was carried out for bat presence and roost records within a ten kilometre radius of the study area. The exercise covered also sites designated for the conservation of bats within a ten kilometre radius of the Study Area, including European and national designated sites.
227. In 2016 a habitat assessment was undertaken to identify habitat types within the study area for their suitability to support bats.
228. The field surveys covered the study area and were extended to identify habitats along the proposed grid connection route and the turbine delivery routes.
229. The Report states that the design of this survey was created with reference to best practise guidelines for surveying bats and windfarms. It states that the surveys carried out in 2016 in combination with previous survey efforts exceed minimum guideline standards, being a reference to Bat Conservation Ireland 2012 standards.
230. The limitations of the survey were described in Part 4 including a discussion of height:-
"No passive surveying at height was undertaken. Studies have shown activity levels recorded at ground level may differ to those recorded at height. Assessing bat activity levels from only ground level data may overestimate activity levels experienced at height for certain species e.g. Pipistrelle bats, and may underestimate those for high flying species e.g. Leisler's Bat (Collins and Jones, 2009).
It should be noted that detection distances can vary between species and method employed. For example Leisler's bat has a much larger detection distance of 80 meters compared to 25 meters for Pipistrelle's species. This may lead to an over estimation of Leisler activity when compared to Pipistrelle. Likewise Brown Long- eared bat is a very quiet species and may hunt without echolocating, making this species very difficult to detect. In addition automatic detectors have a larger detection distance than manual detectors."
231. The Report makes the following conclusions:-
ˇ Areas of woodland and forestry as well as rivers and associated riparian habitat were assessed as moderate suitability for foraging and commuting bats.
ˇ Drains with vegetation and areas of scrubs were assessed as low suitability.
ˇ Cut over bog habitats which dominate the Study Area were considered to be of negligible suitability.
ˇ All structures and trees within the Study Area were assessed as low roosting potential.
ˇ No roosts in any structures or trees were recorded within 200 metres of the site boundary in 2013 or 2016.
ˇ Overall, bat activity levels were low in 2016.
ˇ Bat activity was greater in woodland and riparian habitats compared to bog habitats.
232. In relation to collision risk, the Report concludes:-
"The main impact associated with the operation phase of the proposed wind farm is injury or death to bats through direct collision or from the effects of barotrauma. At Coole Wind Farm, species at high, medium and low risk of collusion were recorded. However, following a full and comprehensive survey over a number of seasons, activity levels were shown to be low and were largely concentrated away from proposed turbine locations.
It is concluded that bats will only occasionally cross the open bog habitats where the majority of turbines will be sited. Therefore, the risk of bat collision is unlikely at these turbines and a negative impact will not be significant.
Turbine 5 will be located in an area of coniferous forestry and represents a greater risk of collision. Favourable bat habitat is situated to the north of the turbine 5 along the River Glore and to the south within woodland. Bats were recorded feeding and commuting along tracks close to T5 in July and October and particularly in August."
233. In respect of loss of habitat the Report concluded:-
ˇ "No roosts sites were identified within the Study Area."
ˇ "No significant effects on roosting bats are anticipated."
ˇ "Construction of T5 will result in the loss of a small area of coniferous forestry. This habitat has moderate value for foraging and commuting bats. More favourable bat habitat is available along the River Glore to the north and deciduous woodland to the south. Connectivity between these habitats will be maintained. Therefore no significant impacts on foraging or commuting bats are anticipated."
"It is proposed to remove trees along the proposed link road. Given the availability of more favourable habitats in the wider area and the small extent of tree removal, the loss of these trees is not considered significant for foraging and commuting bats. These trees were assessed as negligible - moderate suitability for roosting bats. A pre-construction survey is recommended to ensure no roosting bats are present prior to the felling of these trees."
234. The Report states that bats may be disturbed by noise, vibrations or lighting, particularly during construction activities during the summer months and that this may lead to temporary avoidance of the area during turbine erection and construction of access roads. The Report concludes that any disturbance resulting from the development would be short-term and will not extend beyond the construction phase and impacts are not considered significant.
235. In relation to management of the habitat the Report contains a recommendation in relation to turbine 5 as follows:-
"Construction of T5 will require the removal of coniferous forestry, creating edge habitats and spaces around the turbine. This may provide favourable conditions for flying inspects and foraging bats. At a minimum, buffer distances of 50 metres as recommended by Natural England (2014) will be observed."
236. The Report exhibits a diagram demonstrating how a buffer of 50 metres is to be achieved against trees or hedgerows. This diagram is an extract from the Natural England Guidelines of 2014 and contains the recommendation that "to minimise risk to bat populations our advice is to maintain a 50 metre buffer around any feature (trees, hedges) into which no part of the turbine intrudes."
237. The same diagram and recommendation regarding a 50 metre buffer is repeated in the Scottish Natural Heritage Guidelines of 2019, which Mr. Sweetman claims the Inspector failed to have regard to.
238. The Report states that post construction monitoring and fatality searches will be undertaken during the operational phase of the development the aim of which is to monitor changes in bats use of the site and the effectiveness of the prescribed buffer distances at turbine 5 and to record any facilities.
239. In its Order dated 26 March 2019 the Board noted the impact on bats and that they would be mitigated by the positioning of turbine blades at sufficient distances from the riparian habitat. Condition no. 4 of the Board's decision stipulates that the mitigation measures and monitoring commitments identified in the EIAR submitted by the developer must be implemented in full.
Natural England Guidelines of 2014 and 2019240. The Natural England Guidelines 2014 referred to in the Bats Report and by the Inspector are a publication by Natural England, a British government sponsored organisation which issues technical information notes. The guidelines of March 2014 were a 3rd Edition issued on 11 March 2014 entitled "Bats and Onshore Wind Turbines Interim Guidance".
241. The guidelines state that:-
"To minimise risk to bat population our advice is to maintain a 50 metre buffer around any feature (trees, hedges) into which no part of the turbine intrudes."
242. The Leisler bat is characterised as high risk in relation to wind turbines generally and a high-risk species likely to be threatened due to impacts from wind turbines.
243. In relation to the appropriate buffer it states:-
"If roosts have been identified close to, or on a 'proposed site', turbines should be located as far as possible from the roost and any identified flight paths. [4] In practice this may be covered if turbine blade tips are situated at least 50 metres from any habitat features or structures suitable for roosts. This is most easily described by imagining a 50 metre buffer or 3D corridor drawn around the feature (hedge, wood etc.) and ensuring no part of the turbine (tower or blade) intersects with this. Situations involving high or medium risk species (for example noctules or pipistrelle) will need to be assessed on a case by case basis."
244. In January 2019 new guidelines were issued by Scottish Natural Heritage and others (including Natura England) entitled "Bats and Onshore Wind Turbines: Survey, Assessment and Mitigation". The joint publishers of these guidelines were Natural England, Scottish Natural Heritage, Natural Resources Wales, Bats Conservation Trust, Scottish Power Renewals, Renewal U.K., The University of Exeter and Ecotricity.
245. The 2019 Guidelines consider surveys "at height", and state "Monitoring at height can provide useful additional information on bat activity, but it is unlikely to detail the presence of any species not already recorded using detectors at ground level (except in woodland - see below)".
246. Under the heading "buffers" the 2019 Guidelines state the following:-
"The Euro bats Guidance recommends a 200 metre buffer around woodland areas. There is however currently no scientific evidence to support this distance in the U.K. and it is recommended that a distance of 50 metres between turbine blade tip and nearest woodland (or other key habitat features such as wetlands etc.) (See Figure 1) (which is identical to the figure in the 2014 Guidance) is adequate mitigation in most, lower risk situations. Exceptionally, larger buffers may be appropriate e.g. near major swarming and hibernation sites. The longevity of wind farms should also be taken into account and the maximum growth, or management, of woodland and other relevant habitat features considered in their planning.
A 50 metre buffer distance should be applied as a basic standard mitigation measure for all bat species occurring at proposed wind farms, including all key-holed sites, which may present an increased risk of bat collisions. In practice the 50 metre buffer should be applied universally, irrespective of whether curtailment is also considered necessary. Some higher risk species notably the high-flying ones such as noctules and Leisler's bat frequently fly in open areas however and this form of mitigation is unlikely to be effective for these."
247. Mr. Sweetman claims that in relying on the Interim Guidelines of 2014 the Board took into account irrelevant considerations and in failing to have regard to the 2019 Guidelines the Board failed to take into account relevant considerations. He continues "in relying on the interim guidelines which have been replaced and in failing to have regard to the 2019 Guidelines and in failing to seek additional bat surveys for high flying bats notwithstanding the points made by the DAU, the first named respondent acted irrationally."
248. In summary, Mr. Sweetman claims the following.
249. Firstly, that the Board erred in law and acted irrationally in failing to request from the developer the information identified by the DAU in its communication of 12 December 2017.
250. Secondly, that the Board failed to consider the DAU observation to the effect that activity by high flying species such as Leisler's bat may have been underestimated.
251. Thirdly, that in having regard to the Guidelines of 2014, which had by the time the Board decided the matter in March 2019 been updated with the Guidelines of January 2019 the Board had regard to irrelevant considerations and failed to have regard to relevant considerations. Mr. Sweetman submitted that the Board, itself being an expert body, was under an obligation to ensure that it had before it and availed of the latest available guidance.
252. On 20 December 2018 the Inspector made his Report. In January 2019 the 2019 Guidelines were published by Natural England and others. On 13 March 2019 the Board met and issued its Direction deciding to grant the permission and on 26 March 2019 the Board issued its order.
253. Neither the Inspector nor the Board had before it the 2019 Guidelines.
254. Mr. Sweetman's ex parte application for leave to issue those proceedings was made on 20 May 2019 and adjourned to 27 May. On the adjourned date he was granted liberty to file an Amended Statement of Grounds "as per Schedule attached". The Amended Statement of Grounds contained a new paragraph E43A, which contained all of Mr. Sweetman's grounds relating to the submission of the DAU and failure to have regard to the 2019 Guidelines. Thus, it is clear, and acknowledged by Mr. Sweetman, that not only was the Board unaware of the 2019 Guidelines when making its decision on 26 March 2019, but Mr. Sweetman himself only became aware of them between 20 and 27 May 2019, and after he had commenced those proceedings.
255. It is clear from Section 3.3. of his report that the Inspector had read and considered all of the observations of the DAU, including those in relation to the adequacy of bat surveys. The submission of the Department is also expressly referred to in the Order of the Board, which adopts the Report of the Inspector.
256. In para. 7.3.4.10 of his Report the Inspector refers expressly to the absence of high-level surveys and the presence of Leisler's bat on site and the location of turbine T5. He states that the positioning of turbine T05 requires particular attention.
257. The Inspector refers to the prescribed buffer distances in the Natural England Guidelines 2014 of 50 metres, and notes that the drawings submitted by the developer illustrate that a buffer zone of approximately 56 metres will be maintained between the blade tip of turbine T05 and the riparian habitat. He reaches the conclusion that a reasonable clearance distance between the habitat features and the turbines would be provided and a significant impact would not arise. He refers to the need to monitor effectiveness of the prescribed buffer distance and such monitoring is a condition of the Board's Decision.
258. The Natural England Guidelines, of 2014 and the 2019 version, are non-statutory guidelines published in another jurisdiction. It is clear that the Inspector, while referencing the 2014 Guidelines, did not limit his examination of this subject to this source.
259. Insofar as this ground relates to the failure to take account of updated guidelines, the Board was never under any obligation to have regard to these non-binding guidelines, let alone guidelines published in a different jurisdiction, which Mr. Sweetman himself only discovered in May 2019 had been published between the date of the Inspector's report and the date of the Board Decision.
260. The fact that the Inspector cited buffer zones and other recommendations contained in the Guidelines of 2014 does not mean that he or the Board was under an obligation, even acting as an expert, to have regard to the 2019 guidelines published in another jurisdiction and which had not come to the attention of the Board. There is no reason to regard the Board's unawareness of the updated Guidelines as a failure or error on its part.
261. For completeness, it is noteworthy that the 2019 Guidelines repeat the recommended buffer zone of 50 metres. It was still therefore the minimum buffer zone recommended by those bodies.
262. The 2019 guidelines state that "exceptionally larger buffers may be appropriate e.g. near major swarming and hibernation sites". It also states that "some higher risk species, notably the high-flying ones such as noctules and Leisler's bats frequently fly in open areas however and this form of mitigation is unlikely to be effective for these". Turbine 05 is the only turbine which is said to be adjacent and its proposed location is 56 metres from the riparian habitat.
263. The 2019 Guidelines refer to the possibility of large buffers being appropriate, "for example near major swarming and hibernation sites". The only evidence before the Inspector was that there were no "major swarming and hibernation sites" for any species of bat located on the project site.
264. It is clear that:-
(1) The report of the Inspector and the Board Order itself expressly referred to the of the submission by the Department, which had referred to limitations in the bat surveys.
(2) The Inspector having noted the absence of high-level bat surveys determined that a precautionary approach should be adopted.
(3) The inspector accepted the evidence of the Bat Survey which demonstrated, inter alia, the following:
(a) the turbine site is not dominated by forrest and as there is not a minimum requirement for a project of this nature to do so, surveys at height were not considered necessary.
(b) no bat roosts were identified within the site.
(c) bat activity levels were "quite low" and that the proposed works would involve loss of trees and hedgerow which have "moderate" potential for foraging bats.
(4) The Inspector concluded that a reasonable clearance distance between the habitat features and the turbines would be provided and a significant impact would not arise.
265. The Inspector accepted the assessment that the loss of the bog areas for turbines and associated infrastructure would have negligible impacts on local bat populations. He found that loss of scrub and tree line habitats would only marginally reduce bat foraging and commuting opportunities and that potential for barotrauma or collision is low with adequate separation distances achieved between turbine blades and habitat features.
266. It is significant that the Inspector recognised the potential for impacts on bat species and accepted that there would be some impact on bats in terms of loss of bog areas for turbines and associated infrastructure and still concluded, as he was competent to do, that they would have negligible impacts on local bat populations. The order of the Board identified and recognised these risks and by Condition 4 stipulated the requirement for mitigation and monitoring commitments, including those involving bat surveys continuing by an ecologist.
267. Neither the 2014 Natural England Guidelines, nor the 2019 version (to the extent it has any relevance) stipulate a definitive requirement for surveys at height. They suggest that certain high-flying species including the Leisler may be at risk at higher levels. But when all of the Guidelines and research is taken into account it is clear that the Inspector made an informed assessment, as he was entitled to do, that there was no requirement to perform at height surveys.
268. The case made by Mr. Sweetman is based on the premise that once the Department had made submissions and observations the Board, and the Inspector, were not entitled to make their own judgment on those observations, but must first embark on a further round of interrogating the developer by reference to the DAU letter of 12 December 2017. In other words, that the Board was under an obligation to react in one particular way to all of the questions raised by the Department. The obligation of the Board was to have regard to the submissions received, as it did, and it was entitled to make the conclusions which it made without requesting further information from the developer. To hold otherwise would fly in the face of the principles in O'Keefe and adopted in Klohn and People Over Wind (op cit).
269. The applicant has failed to discharge the burden of establishing under this heading that there were "no relevant materials before the Board" which would enable the Board to make its decision or that the Boards decision was so irrational that no reasonable decision-maker could have reached the same conclusion.
270. In the affidavit of Una Nealon, reference is made to the fact that the developer undertook high level surveys in September and October 2017 and between April and October 2018 "out of an abundance of caution, in case a request for further information was made by the Board and to avoid unnecessary delays". The developer submitted that the result of this high-level survey, which was exhibited by Ms. Nealon, is to establish that for all species of bats activity was higher at ground level compared to at height. Although the Leisler bat showed the greatest activity at height compared to at ground level, the report of these surveys revealed that bat activity generally was consistently higher at ground level compared to height across all seasons surveyed and for all species, including the Leisler bat. It is submitted therefore on behalf of the developer that there was no indication that the activity of the Leisler bat at height had been underestimated in the assessment made in the original reports submitted.
271. This 'at height' survey was not before the Board when it made its decision and clearly formed no part of its deliberation on this question. The respondents accept, as they must, that the Court cannot now regard this as relevant to the manner in which the Board assessed this question. But the developer places the Report before the court to demonstrate that there was no evidence to support the contention that the Board failed to consider adequately the risk to the Leisler Bat.
272. Mr. Sweetman submits that the fact that such a survey was undertaken and revealed only in Ms. Nealon's affidavit in response to the proceedings, and never submitted to the Board, demonstrates that the developer anticipated a request for further information on this question. That much is clear from Ms. Nealon's affidavit. But it does not mean that the Board failed in its assessment of the information which was before it and considered by the Inspector.
273. Article 12 of the Habitats Directive obliges member States to "establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting (a) all forms of deliberate capture or killing of specimens of those species in the wild; prohibiting such matters as (b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration and... (d) deterioration or destruction of breeding sites or resting places". The Leisler bat is among the species listed in Annex IV(a). The Statement of Grounds pleads (43A(f)) that the Leisler bat is not a "qualifying interest" under the Habitats Directive for any of the European sites relevant to this case. Nonetheless, Mr. Sweetman's claim continues that "all Microchiroptera" (which includes the Leisler Bat) are protected under Article 12 of that Directive. This claim is not tied to any European site. Nor does it allege that any breach of Article 12 occured.
274. In Alen Buckley v. An Bord Pleanála & ors [2017] IEHC 541, Haughton J. emphasised the importance of pleadings in judicial review, particularly the requirement to state clearly each ground advanced and particularise same. The passing reference to Article 12 in Ground E43A (f) clearly fails this requirement.
275. I accept the submission of the developer on this subject that Article 12 cannot be called in aid to impose on the Board some type of free standing obligation to carry out, what the developer characterises as a "shadow assessment" as to whether a breach of Article 12, not specified by Mr. Sweetman, has occurred.
276. In summary, therefore, in relation to the grounds advanced concerning the Leisler Bat, my conclusions are as follows:-
(a) The Inspector and the Board had regard to the submission of the Development Applications Unit of the Department, which was expressly noted in the Inspector's Report and in the Decision of the Board.
(b) The Inspector was entitled to conclude that the information contained in the Environmental Impact Assessment Report, including the Bat Survey at appendix 5-4, contained sufficient information to enable the performance of an Environmental Impact Assessment as regards bats.
(c) The Inspector noted the risk to bat populations, including the Leisler Bat, and noted that the positioning of turbine 05 close to the riparian habitat required particular attention.
(d) The Inspector had regard to the 2014 Natural England Guidelines and to numerous other reports, surveys and publications described in the EIAR, and doing so was within his sphere of competence.
(e) The Board was under no obligation to have regard to the 2019 Guidelines of Natural England which, although published in January 2019, had not been brought to its attention, and were in any event not binding on the Board.
(f) The Inspector had regard to the recommended minimum buffers of 50 metres identified in the 2014 Guidelines of Natural England (and repeated in the 2019 version) and had regard to the fact that the nearest habitat to any turbine was at a remove of 56 metres.
(g) The Inspector recognised that there may be an increased risk as regards the Leisler Bat, being a high flying bat, but, having identified that there is no requirement for surveys at height, was entitled to conclude, as he did, that no significant effects on roosting bats were anticipated, having regard to the low level of bat activities at the site as a whole.
277. I am not persuaded that the applicant has discharged the onus of establishing that the Board took into account irrelevant considerations, failed to take into account relevant considerations or otherwise acted irrationally, either in relation to the assessment of the impact of the project on bats, or in deciding, as he did, not to request from the developer further information identified by the DAU.
278. Mr. Sweetman claims (paras. E18, 19, 20, 21, 37, 44, 45, 46 and 48) that the Board failed to consider the cumulative effects of the project with commercial peat extraction being undertaken by Westland Horticulture Limited ("Westland") on an area in the Clonsura townland, comprising approximately 25% of the area of the windfarm site.
279. Many years prior to the developer's application, Westland, a commercial peat extraction company unconnected to the developer, applied for declarations pursuant to s.5 of the Act as to whether the activity of commercial peat extraction is development and if so whether it is exempt development. The Board decided that these peat extraction operations were development and exempted development until the 20th day of September, 2012. After this date they were development and not exempted. A judicial review of that decision was unsuccessful. The court was informed at the hearing of these proceedings that the commercial peat extraction activity at the site had been discontinued, at least for now. But when the matter was being considered by the Inspector and the Board, they had no reason to know of that discontinuance. The Inspector recites the above events and planning decisions as part of the planning history of the site. It is in that context that the Statement of Grounds alleges that the Board failed to properly consider the cumulative effect of the project together with commercial peat extraction operations at the site and certain peat drainage activities at the site.
280. In addition to reciting this activity as part of the planning history, the Inspector's Report is replete with references to the 'ongoing commercial peat extraction activity'. (See paragraphs 7.3.4.13 (impact on fauna), 7.3.4.18 (relevance to potential disturbance to Golden Plover), 7.3.4.20 (habitats for the Hen Harrier), 7.3.4.25 (relevance to flights of Woodcock), 7.3.4.30 (impact on qualifying interests of Lough Bane p NHA and neighbouring SPAs), 7.3.4.33 (impacts on migratory bird species), 7.3.5.1 (impact on lands), 7.3.5.2 (potential for peat slide), 7.3.5.5 (effects on designated sites), 7.3.5.14 (land and soil), 7.3.5.15 (stability of roads, turbines and associated infrastructure), 7.3.5.37 (water), 7.4.6.10 (landscape), 7.4.6.14 (visual impact), 7.4.6.15 (visual impact), 7.4.6.16 (bird habitats), 7.4.9.2 (effect on designated sites), 7.4.9.7 (designated sites), 7.5.2.1 (potential for peat slide)).
281. The mere recital of the ongoing commercial peat extraction operations, no matter how numerously, would not of itself amount to a reasoned consideration of their cumulative effects with the project. However, each of those references is made in the context of the Inspector's examination of all of the issues mentioned above, relevant both to EIA and AA. Particular consideration of cumulative effects is made in several instances, notably the following.
282. At para. 7.3.4.33 the Inspector states that in relation to cumulative impacts "consideration is given to other projects, including the existing peat extraction, forestry and other turbines within 24 km of the site".
283. In para. 7.3.5.14 the Inspector refers to the potential for cumulative effects with the ongoing peat operations which he says "would have potential to arise, but in this regard I note the detailed construction methods to be employed as part of the project and the peat management and monitoring features".
284. He continues at 7.3.5.15 as follows:
"I would note that the potential cumulative impact of the ongoing peat extraction and the potential impacts of such operations on the stability for roads, turbines and associated infrastructure, which I am satisfied have been addressed as part of the project design features, including the setting up of an Interactions Management Group and the proposals within the Peat Stability Assessment, which include details of peat stability monitoring".
285. In paragraph 7.3.5.37 the Inspector states that a number of observers expressed concerns about the cumulative impact of the proposed development with the commercial peat operations in terms of surface and ground water quality and he states that he has considered that in his assessment. Similarly, in paragraph 7.5.2.1, in the context of project splitting, he records that "due consideration has been given to the adjoining land uses, including the peat extraction as part of the cumulative impacts, if any."
286. It is self-evident from all those references that the Inspector did not fail to consider cumulative effects with the ongoing commercial peat extraction activities, and this ground must fail.
287. A separate claim is made by the Action Group grounded on its assertion that the project is proposed to be 'engrafted' onto 'illegal structures' and the unauthorised activity' of commercial peat extraction. This is considered in Part 12(16) below.
288. Mr. Sweetman alleges (para. E49) that the Board "failed to consider alternatives in making its EIA including the alternative of using lower turbines in accordance with the adopted policy of Westmeath County Council."
289. Article 5 of the EIA Directive prescribes the information which must be provided in the EIA. It must include a description of reasonable alternatives studied by the developer. Schedule 6 to the Regulations of 2001, which transposes Article 5, provides that information in the EIAR must include: "(d) a description of the reasonable alternatives studied by the developer, which are relevant to the proposed development and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the proposed development on the environment".
290. Mr. Sweetman submits that the EIAR does not contain any proper comparison of the environmental effects of smaller turbines against the planned 175m high turbines and does not give reasons for the selection of the higher turbines taking account of effects of the project on the environment. This is the only ground he identifies in relation to alternatives. (Others are invoked by the Action Group and considered later).
291. The EIAR considers alternatives in two sections. S.2.4 concerns windfarm site selection and s.2.7 concerns alternatives generally.
292. Section 2.4.1 of the Report describes the rationale for the selection of the site and the criteria applied such as:
ˇ Wind resource.
ˇ Reasonable access to the national electricity grid.
ˇ Planning policy context.
ˇ Low population density.
ˇ Environmental sensitivity and designations.
A national search was undertaken for a suitable site, which included identification of environmentally designated sites and windfarm development, in conjunction with a lack of sufficient grid capacity at certain locations.
293. Considerations included the availability of wind resource itself, and the policy context of the County Development Plan. Westmeath County Council Policy P12 identified a preference to direct large scale energy production projects in the form of windfarms onto "cutaway peat lands in the county", subject to environmental, landscape, habitats and wildlife protection requirements being addressed. The EIAR stated that the proposed project is to be located on cutaway peatland in line with the requirements of the County Development Plan in relation to preferred locations for windfarms. The report examines such matters as proximity to sensitive receptors and population density, environmental sensitivity and designations, landscape capacity, land use, access and infrastructure, cultural heritage and the visibility of the construction having regard to the low lying nature of the site.
294. The question of alternative sites is considered again under the general heading of alternatives in s.2.7 of the EIAR. Reference is again made to the policy contained in the County Development Plan which describes preferred locations for large scale energy production as cutover cutaway peatlands, such as the Coole site.
295. In s.2.7.3.1 consideration is given to the design of the turbines from the perspective of the site and its surrounding areas.
296. It is said that the initial concept for the site consisted of 25 turbines. Following consultation with the local community and with Westmeath County Council, a decision was made to reduce the number of turbines from 25 to 13. The proposal for 13 turbines is said to take account of height constraints and required distances and setbacks as between turbines and houses and roads while at the same time seeking to maximise the wind energy potential of the site. Account was taken of the fact that there are twelve houses located within one kilometre of the turbine locations, the closest occupied dwelling being 702 metres from the nearest turbine.
297. The report says that if smaller turbines were used, in order to achieve the same output namely 50 MW, it would be necessary to install a greater number of turbines. The turbine type proposed for this site allows for the use of fewer, taller turbines with an increased efficiency and a greater economic benefit to the consumer.
298. It is said that lower turbines were considered and that the decision to use the 175 metre height option represented the optimal balance between turbine height and turbine density in the particular setting of this landscape.
299. The conclusion presented in the EIAR is that the use of smaller turbines would not be appropriate as it would fail to make the most efficient use of the wind resource passing over the site.
300. From the perspective of environmental considerations it is said that the use of a smaller number of turbines maximises wind energy potential of the site and minimises the development footprint. The more individual turbines are placed on the site the higher potential for environmental impacts to occur.
301. It is also said that if lower height but a greater number of turbines were constructed more internal access roads would be required and this also would create unnecessary disturbance to the site and increase the potential for additional environmental impacts to occur.
302. Apart from the turbines themselves, the report considers alternatives for other aspects of the project including an alternative in relation to the temporary construction compound and alternative locations or designs for the electricity substation and the grid connection. A detailed examination is provided as to the options for grid connection routes, with a view to minimising disruption to regional and other public roads and minimising potential environmental effects on the ground.
303. In para. 7.3.2 of his report the Inspector considers the alternatives as follows:
"Regarding the exploration of reasonable alternatives, the applicant carried out a selection process and this is set out in ss. 2.4 and 2.7 of the EIAR. An initial nationwide assessment was undertaken based on various constraints and facilitators to identify a suitable region to accommodate the proposed development. The EIAR states that candidate sites were reviewed under the relevant key criteria for the siting of wind energy developments, and it was determined that taking into account the effects of the proposed development on the environment, as well as technical and policy related criteria, the appeal site at Coole represents the optimum location for the proposed development, subject to detailed examination. Reasonable alternatives with respect to site design, development design, ancillary features, including grid connection route, access and land uses are also outlined within the EIAR. Within s.11.8 of the EIAR addressing landscape the applicant outlines that 18 turbines were initially considered, however, to increase separation distances from residential receptors a revised layout of the reduced number of turbines was arrived at. Turbines locations were also revised to account for telecommunication signals (s.13.2.3.2.2). The applicant clarifies in s.2.7.5.1 of the EIAR that the primary reason for discounting alternative renewable energy developments, such as solar and biomass was primarily on the basis of the need to minimise the impact on the ongoing commercial peat operations, potential energy outputs and project cost. The option of avoiding the need for a borrow pit and serving the site via quarries only was assessed. Alternative renewable energy options and the "do nothing" alternatives were also explored. Environmental and other reasons for discounting options are provided.
Having regard to the above, I am satisfied that the matter of the examination of alternatives has been satisfactorily addressed."
304. The Inspector's analysis does not on its face examine the alternative of lower height turbines. The focus of the analysis is on the proposition that the lower number of thirteen turbines causes the smallest development footprint and therefore is less likely to cause environmental impacts on the landscape than alternatives. The nearest the Inspector goes to the question of height is in his reference to "development design". This is clearly linked to commercial viability, since the EIAR says that to achieve the same output with less turbines more height would be required. This in turn is linked to the objective of reducing the footprint of the project to reduce impacts on the landscape, a factor which the Board was clearly entitled to take into account. In circumstances where the Inspector was addressing both location and design of the turbines in the context of viability, I do not find that he erred in his analysis. The fact that an influencing factor was the viability of the project did not render the analysis flawed.
305. The question of alternatives was considered by the CJEU in case number 461/17 Holohan v. An Bord Pleanála. The court stated:
"... the EIA Directive contains no definition of the concept of 'main alternatives', as referred to in Article 5(3)(d) of the EIA Directive. The Court must, however, hold, as did the Advocate General ... that the decisive factor, in order to identify those alternatives that should be regarded as 'main' alternatives, is whether or not those alternatives influence the environmental effects of the project.
Further, since, according to Article 5(3)(d) of the EIA Directive, only an outline of those alternatives must be supplied, it must be held that that provision does not require the main alternatives studied to be subject to an impact assessment equivalent to that of the approved project. That said, that provision requires the developer to indicate the reasons for his choice, taking into account at least the environmental effects. One of the aims of imposing on the developer the obligation to outline the main alternatives is that reasons for his choice should be stated."
306. The obligation imposed by Art 5.1 to describe alternatives studied by the developer and to indicate reasons for the option chosen, is an obligation on the developer. Having regard to the judgment in Holohan, it is clear that once the EIAR contained a statement of the reasons for the site selection and for the design of turbines, which it did, the Board was not required to embark on a full EIA of the alternatives. In this case an explanation was given for the decision to reduce the number of turbines to thirteen, and construct them at the height of 175m, all as a compromise between minimising impact on the landscape and achieving the desired output of the project from the feasibility perspective. This information was studied and referred to by the Inspector and I do not find that the absence of a repeat of the combined environmental and viability analysis means that he erred in his recommendation.
307. Before turning to the induvial grounds of the application in relation to birds it is necessary to refer to the Inspector's Report and the treatment of birds both in his Environmental Impact Assessment and the Appropriate Assessment.
308. In the Environmental Impact Assessment by the Inspector, paragraphs 7.3.4.14 to 7.3.4.35 relate to birds.
309. In 7.3.4.15 the Inspector describes the bird surveys undertaken by the developer at the application site and up to 500 metres beyond the site boundaries. The surveys covered wintering, breeding and migratory periods.
310. Four types of surveys were undertaken (a) two fixed point vantage surveys; (b) quadrant/walkover surveys; (c) winter transect surveys to identify target species and ground birds of conservation value; (d) focused surveys for breeding raptor and woodcock. Wetland and water bird counts were undertaken for an area extending six to eight kilometres from the main turbine site.
311. The Inspector continues at 7.3.4.16:-
"To determine the collision risk for target species a Collision Risk Model (CRM) was prepared to estimate the number of birds potentially colliding with turbines over a period of time. It was not prepared for bird species that were not observed during surveys. For those species observed, but whose flight was outside the collision risk zone, CRM was not undertaken as the collision risk, within the accuracy available to the assessment would be zero. Based on the CRM results the EIAR utilises percentage parameters in the National Roads Authority (NRA) 'Guidelines for Assessment of Ecological Impacts on National Road Schemes' to estimate the geographical scale of impact on bird populations."
312. The report continues in 7.3.4.17:-
"As supported by the data provided in appendix 6-1 of the EIAR, section 6.3.2 sets out the bird species observed, with 78 species in total, 16 of which are Annex 1 (being a reference to Annex 1 of the Birds Directive) species, species of community interest (SCI's), red listed species and raptors. The following Annex 1 species were observed; Golden Plover, Merlin, Hen Harrier, Peregrine Falcon, Little Egret, White Tailed Eagle, Osprey, Woodcock and Whooper Swan."
313. Each of these species is then considered by the Inspector. The detail of his conclusions is informative:-
ˇ In respect of the Golden Plover the flight activity was considered sporadic and did not indicate a clearly discernible commuting route. The Inspector noted the numbers of Golden Plover recorded at relevant designated sites. He noted that the collision risk calculation suggested the potential in the case of Golden Plover for just over 2.5 collisions per year based on data collected which he stated was considered to be insignificant in the context of local county national and international populations of Golden Plover.
ˇ Individual Merlin flights were recorded on seven occasions in the wintering and breeding seasons, with one flight within the potential collision risk zone. The EIAR had noted extensive other foraging grounds located in the surrounding area and that the collision risk calculation suggested potential for just over one collision every one thousand years based on the data collated.
ˇ A single Hen Harrier was recorded once during the 408 hours of vantage point surveys undertaken. The Inspector observed that the mature commercial conifer trees which will be removed to facilitate Turbine 5, and the open expansive commercial peat lands do not provide ideal habitat for Hen Harrier.
ˇ In relation to the Peregrine Falcon eighteen flights were recorded within the windfarm site and one outside the 500 metre buffer zone. The Inspector noted that the collision risk calculation suggest that there is potential for just over one collision every 52 years, which was not considered significant in the context of the populations of Peregrine Falcon.
ˇ In respect of the Little Egret, single digit numbers were observed during surveys and the Inspector concluded that the development site is not of significance to this species.
ˇ Only one sighting of the White-Tailed Eagle was recorded and the Inspector concluded that given the single observation of the bird outside the collision risk zone the appeal site was not considered of significance to this species.
ˇ The Inspector found that the Osprey was a rare visitor to Ireland and that there was no evidence to suggest that the appeal site was of significance to the species.
ˇ Three Woodcock were recorded during vantage point surveys within the fringes of the site, and 28 observations recorded within a 500 metre buffer of the site. The Inspector noted that all recorded flights were outside the potential collision risk zone. The Inspector noted that the species was considered to be important at a local level, and an assessment of direct habitat loss and displacement was undertaken. He continues:-
"The felling of trees is anticipated to temporarily reduce the distribution and availability of daytime roosting sites, however extensive other potential roosting sites would be available in the surrounding area and significant displacement during construction is not anticipated, given the similarity of the construction activities with ongoing peat extraction activities."
314. The remaining Annex 1 species which had been observed in the survey was the Whooper Swan. It was not considered any further in the context of the EIA, but it was considered later in the Appropriate Assessment (paras. 7.4.9.6 and 7.4.9.7). In those paragraphs the Inspector considers the Whooper Swan in the context both of the Lough Derravaragh SPA, 5 kilometres to the south of the turbine site, and within the boundaries of the windfarm site itself.
315. The Inspector reports in 7.4.9.6 that Whooper Swan were recorded at Lough Derravaragh during bird surveys, but the flights were 6.5 kilometres from that site. He concluded that the birds observed in this species were not associated with the internationally important population at Lough Derravaragh itself.
316. In 7.4.9.7 the Inspector noted that Whooper Swan were not recorded utilising the habitat within the site boundaries. Direct loss of habitat would not arise "given the ongoing commercial peat land and commercial forestry operations dominating use of the site". He records that the collision risk assessment based on data collected estimated a potential for one bird collision every 37 years and that this was considered insignificant.
317. Having considered the species which were observed and which are listed in Annex 1 to the Birds Directive the Inspector then considered, in para. 7.3.4.27 onwards other bird species identified either within the site or its buffer zone. These were the Coot, Shoveler, Lapwing, Black Headed Gull, Curlew, Common Buzzard, Eurasian Sparrowhawk and Common Kestrel. The Coot, Shoveler, Widgeon and Teel are stated to be qualifying interests for neighbouring SPA's and the potential impact of the proposed development on those species was considered not significant, as analysed later in the Appropriate Assessment section of the report.
318. The Inspector then refers to the recorded numbers of flights of Lapwing, Black Headed Gulls, Common Buzzard, Eurasian Sparrowhawk and Common Kestrel. He notes that from the report submitted by the developer the collision risk for Lapwing was one bird every 16.9 years, for Common Buzzard one bird every three years, for Eurasian Sparrowhawk, one bird every 83 years and for Common Kestrel one bird every 8 years. These results were considered to be insignificant in the context of local, county, national and international populations. In respect of the Black Headed Gull, the survey suggested, and the Inspector accepted, that the site is not on a migratory or commuting route and therefore significant displacement effects or habitat loss was not anticipated for these species.
319. In para. 7.3.4.28 the Inspector considers other species identified within the wetland waterbird counts, namely the Common Tern, Goldeneye, Kingfisher, Pochard, Redshank and Tufted Duck. He notes that these were not recorded within the site or its buffer zone during surveys and connectivity with the site was discounted. Goldeneye, Pochard and Tufted Duck are considered separately in the Appropriate Assessment report since they are identified as qualifying interests for neighbouring SPA's.
320. The Inspector considered queries raised by observers as to the adequacy of the assessment on the impact of the development on migrating Greenland White Fronted Geese and Whooper Swan both of which are Annex 1 species. These are considered in more detail as part of the Appropriate Assessment in the context of the SPA's for which they are listed as qualifying interests.
321. The Inspector reaches the following conclusions in relation to birds in the context of the EIA:-
"7.4.31 Given the wide availability of comparable habitat in the vicinity, effects associated with habitat loss and disturbance, as well as displacement effects are considered to be low for the proposed development. In terms of the barrier effects, total flight duration and flight activity within the study area was found to be low for all avian receptors identified. Table 6.12 to 6.21 set out the predicted results of the CRM for nine species in total and the results are deemed to be low or negligible in all instances of the key avian receptors.
7.3.4.32 In terms of the decommissioning phase of the project, significant direct or indirect effects are not likely, with only potential or short-term slight negative effects envisaged.
7.3.4.33 With regard to cumulative impacts consideration was given to other projects, including the existing peat extraction, forestry and other turbines within twenty kilometres of the site, which is stated to currently solely comprise one turbine 16.4 kilometres to the northeast of the site near Ballyjamesduff in County Cavan. No potentially significant cumulative effects, including barrier effects, are envisaged.
7.3.4.34 The project designed features, as detailed in the EIAR, include appropriate timing for the removal of woody vegetation outside of the bird breeding season, noise and lighting control and the retention of an Ecological Clerk of Works. In terms of the operational phase, a Bird Monitoring Programme would be prepared and this is set out in appendix 6 - 4 to the EIAR. It aims to monitor parameters associated with collision, displacement/barrier effects and habituation. Surveys will be scheduled to coincide with years 1, 2, 3, 5, 10 and 15 of the lifetime of the windfarm. These features are based on guidelines by Scottish Natural Heritage (SNH) and should permission be granted for the development the Bird Monitoring Report summarising the findings of the survey will be submitted to the planning authority at the end of each monitoring year.
(EIA) 7.3.4.35 Overall it is considered that the value of the development site and surrounding area for Flora and Fauna, and specifically ornithological features has been adequately surveyed and quantified and allows for an evaluation of impacts to be completed. Whilst bat and bird collisions cannot be definitively ruled out it has been appropriately assessed and the risk is low for the identified species. The EIAR conclusions as to negligible and low impacts can be supported by a reasoned methodology. I am therefore satisfied that the proposed development would not have any unacceptable direct or indirect impacts in terms of biodiversity. I am also satisfied that cumulative effects are not likely to arise and that approval should not be withheld on the grounds of such cumulative effects.
322. The Board agreed with the Inspector's examination. It considered the main significant direct and indirect effects of the proposed development on the environment and noted that they would be mitigated, as far as concerns birds, as follows:-
"Impacts on birds during the construction works and as a result of collision with turbine blades during operation, which would be avoided as the project would not result in significant displacement or loss of habitat for birds and, by engaging a project ecologist by the low risk of collision for bird species and by following best practise and procedures during the operational phase."
323. The Board then concluded that "subject to the implementation of the mitigation measures set out in the EIAR and subject to compliance with conditions set out below, the effects of the proposed development on the environment, by itself and in combination with other plans and projects in the vicinity would be acceptable having regard to its overall benefits."
324. Section 7.4 of the Inspector's Report in his appropriate assessment required by the Habitats Directive. Section 7.4.2.1 records that the Inspector had regard to the developer's appropriate assessment screening report annexed to the Natura Impact Statement, and to the Site Synopsis and Conservation Objectives for each of the relevant Natura 2000 sites.
325. The screening report initially stated that sites within a fifteen kilometre radius of the development site were identified. Applying the precautionary principle, European sites located outside the fifteen kilometre buffer zone were also taken into account and assessed where potential pathways for impact were identified, and where hydrological connectivity could be established. European sites located more than 45 kilometres downstream of the proposed development were excluded, given the distance and dilution effect of intervening loughs within the Shannon catchment.
326. The sites identified for screening included Upper Shannon river and lakeland systems consisting of seven SAC's (special areas of conservation) and eight SPA's (special protection areas), together with an additional five SAC's outside the upper Shannon catchment. The Inspector himself added an additional SAC, Derragh Bog, which was located 3.5 kilometres from the turbine site.
327. There were therefore identified for screening a total of thirteen SAC's and five SPA's.
328. Of the thirteen SAC's, the Inspector screened out twelve. He did so on various grounds. Certain sites were upstream of the project site, and at distance over ground from the proposed work sites, for others he found an absence of connectivity, absence of hydrological or habitat connections, and absence of any direct hydrological pathway.
329. In respect of Garriskil Bog, a candidate SAC, the Inspector found a downstream hydrological pathway to the proposed works and potential for indirect effects on the supporting wetland habitat.
330. Mr. Sweetman makes no objection to the screening process undertaken by the Inspector in respect of the SAC's.
331. Of the five SPA sites examined in the stage 1 screening, three were screened in for appropriate assessment. Two were screened out by the Inspector namely Lough Kinale and Derragh Lough SPA (one site) and Lough Sheelin SPA.
332. The first ground of the Mr. Sweetman's claim under this heading relates to the screening out of Lough Kinale and Derragh Lough SPA.
333. This SPA was designated by S.I. no.108/2010 made on 12 March 2010. The definitions and operative provisions in this S.I. are central to the grounds raised by the applicant in relation to this site.
334. Regulation 3 of S.I. 108/2010 provides as follows:-
"In order to ensure the survival and reproduction of the species to which article 4 of the Directive (being the Birds Directive) relates, including in particular the species specified in Schedule 3 and having taken account of the matters referred to in Article 4 of the Directive, the area referred to in Schedule 2 and further identified by reference to the maps contained in Schedule 1, is designated as a special protection area." (Emphasis added).
335. Schedule 1 is a map of Lough Kinale and Derragh Lough. Schedule 2 is a description of the area. Schedule 3 provides as follows:-
"Special Conservation Interests
Bird species
Scientific name Common name
Aythya farina Pochard
Aythya fuligula Tufted Duck
Wetland and Waterbirds
In establishing their SPA network, Member States are explicitly required under Article 4 of the Directive to pay attention to the protection of wetlands. To this end the wetland habitat that is contained within this SPA and the waterbirds that utilise this resource are therefore listed as a special conservation interest for this site. This special conservation interest is listed as 'wetland and waterbirds'". (emphasis added).
336. The S.I. defines the term "water bird" as meaning "any bird ecologically dependent on a wetland habitat, wholly, or for at least part of their annual cycle." (emphasis added)
337. The term "wetland" is defined as referring "to areas of habitat containing water, whether natural or artificial, permanent or temporary static or flowing, fresh, brackish, or marine."
338. In his screening report the Inspector states at 7.4.6.7 as follows:-
"There would be no hydrological connectivity between Lough Kinale and Derragh Lough SPA, Lough Sheelin SPA and the proposed works site, as these sites are upstream of the proposed work site and due to the distance overground between these designated sites and the proposed work sites."
339. In para. 7.4.6.10 the Inspector goes on to note that Pochard and Tufted Duck are qualifying interests for Lough Kinale and Derragh Lough SPA and he states that these species were not identified to be using the project site during surveys and a migration or a commuter route for these birds was not identified. He continues "the existing turbine site is dominated by commercial peat land and commercial forestry that would not provide ideal habitat for these birds. No direct or indirect impacts to these bird species are anticipated."
340. Mr. Sweetman submits that the analysis should not be limited to the two bird species listed by name on S.I. 108/2010. He says that bird surveys relied on by the Inspector did not consider as target species birds which are known to be present on European sites (both Lough Kinale and Derragh Lough SPA and also Derravarragh Lough SPA) "but for which the sites were not listed". In the case of Lough Kinale and Derragh Lough SPA he states that in addition to the named species of Pochard and Tufted Duck, there is a separate conservation interest namely "the wetland habitat that is contained within the SPA and the waterbirds that utilise this resource." This is a quote from Schedule 3 of the S.I. which continues "this special conservation interest is listed as 'wetland and water birds'".
341. Mr. Sweetman submits that the only sensible interpretation of the designation of "wetland and water birds" in Schedule 3 to the S.I. quoted above is that the special protection of the S.I. and of the Directive and implementing regulations extends not only to the two species listed by name in Schedule 3 but also to other water birds, not listed by name, but which utilised the resource.
342. Article 4 of the Birds Directive provides that:-
"(1) The species mentioned in Annex 1 shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution."
343. Article 4 continues by stating that "Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species in the geographical sea and land area where this Directive applies". Article 4.2 provides "Member States shall take similar measures for regularly occurring migratory species not listed in Annex 1, bearing in mind their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance."
344. The manner in which this special protection of the Birds Directive is to be effected was amended by Article 7 of the Habitats Directive which provides that obligations under Articles 6.2, 6.3 and 6.4 of that Directive, including of course appropriate assessment, apply in respect of areas classified as special protection areas pursuant to the Birds Directive.
345. Mr. Sweetman claims that the surveys and the report of the Inspector assessed the impact of the project only on the two species named in Schedule 3 namely Pochard and Tufted Duck, and ought to have extended to all water birds utilising the site. He submits that the conservation of the "wetland habitat and the birds which utilise it" is part and parcel of the designation of the SPA for bird species.
346. Mr. Sweetman refers also to the "Site Synopsis" in respect of Lough Kinale and Derragh Lough SPA published on 18 December 2009 by the National Parks and Wildlife Service. It refers to the fact that the site has been designated as an SPA with a special conservation interest for the species Pochard and Tufted Duck. The site synopsis records also that the Birds Directive pays particular attention to wetlands and as these form part of this SPA the site "and its associated water birds" are of special conservation interest for wetland and water birds.
347. Reference is made also in that Site Synopsis to populations of other species which use the site in varying numbers, namely Mute Swan, Coot, Great Crested Grebe, Mallard and Goldeneye. The synopsis concludes by recording that the SPA "was relatively small in area, is of conversation significance for holding nationally important populations of two species, Pochard and Tufted Duck". Finally, the site synopsis refers to an appended description, again by the National Parks and Wildlife Service, which refers to the site having a second objective namely "to maintain or restore the favourable conservation condition of the wetland habitat at Lough Kinale and Derragh Lough SPA as a resource for the regularly occurring migratory water birds that utilise it."
348. Mr. Sweetman submits that under the S.I. pertaining to this site the wetland and its associated water birds are of conservation interest and not only the two species which are designated by name in the S.I.. He submits that the obligation to interpret the schedule to the S.I. in this manner derives not only from the obligation in Article 4.1 classifying the most suitable territories as special protection areas for the species identified in the annex, but also the obligation under Article 4.2 to take similar measures for "regularly occurring migratory species not listed in Annex 1".
349. An affidavit was sworn in these proceedings by Mr. Tierney, a wildlife Inspector in the Science and Biodiversity Unit of the National Parks and Wildlife Service, the unit which prepared the site synopsis. Mr. Tierney confirmed that under the S.I. for Lough Kinale and Derragh Lough SPA the site has not two but three special conservation interests namely:-
(1) Pochard
(2) Tufted Duck
(3) Wetland and water birds.
350. Mr. Tierney states that there is a difference between the first and second conservation objectives and the third. He states that the first two deal directly with the two bird species listed as special conservation interests ("SCIs"). He states that the third objective is for the wetland habitat itself and not the migratory water birds that use it, "although it is intended to benefit any migratory water birds that use it". Therefore, on his description the only bird species in the Special Conservation Interests for this SPA are those listed by name, namely the Pochard and the Tufted Duck.
351. Mr. Sweetman submits that if Mr. Tierney were correct the State has not in the S.I. stated the conversation objectives for the water birds which use the wetlands on this site, other than the Pochard and Tufted Duck and has failed to comply with the obligations in Articles 6.2., 6.3 and 6.4 of the Habitats Directive to give effect to Article 4 of the Birds Directive to adopt special conservation measures for the habitat and for "regularly occurring migratory species not listed in Annex 1".
352. In the screening assessment performed by the Inspector he identifies at table 7.5.1 the five SPA's which are the subject of his examination. In relation to Lough Kinale and Derragh Lough SPA he quotes the conservation objectives as published by the National Parks and Wildlife Service, NPWS, on 21 February 2018 as follows:-
"To maintain or restore the favourable conservation condition of the bird species listed as special conservation interest for this SPA:-
Pochard
Tufted Duck
353. He continues by quoting from what is described in the NPWS published Statement of Objectives as a second objective as follows:-
"To maintain or restore the favourable conservation condition of the wetland habitat at Lough Kinale and Derragh Lough SPA as a resource for the regularly occurring migratory water birds that utilise it."
354. At 7.4.6.7 the Inspector states of Lough Kinale and Derragh Lough that:-
"There would be no hydrological connectivity between Lough Kinale and Derragh Lough SPA and the proposed works site, as these sites are upstream of the proposed work site and due to the distance overground between these designated sites and the proposed work sites."
355. In para. 7.4.6.10 he examines the position in relation to the Pochard and Tufted Duck being qualifying interests for Lough Kinale and Derragh Lough, and states the following:-
"Pochard, Tufted Duck [and others] were not identified to be using the project site during surveys and a migration or a commuter route for these birds was not identified. The existing turbine site is dominated by commercial peatland and commercial forestry that would not provide ideal habitat for these birds. No direct or indirect impacts to these bird species are anticipated."
356. The first question is whether as a matter of construction of the S.I. it was correct to have performed an analysis only in respect of the two species named in the S.I and for no other named bird species.
357. The Site Synopsis published by the NPWS on 18 December 2009 contains a description of the site geographically and states:-
"The site is a Special Protection Area (SPA) under the EU Birds Directive, of special conservation interest for the following species Pochard and Tufted Duck. The EU Birds Directive pays particular attention to wetlands, and as these form part of this SPA the site and its associated water birds are of special conversation interest for Wetlands and Waterbirds."
358. Later in the same Site Synopsis the NPWS reports that the site "supports nationally important populations of two species i.e. Pochard and Tufted Duck". It refers also to a "large population" of Moot Swan and refers to Coot. It continues"A number of other species are found, in relatively low numbers, including Great Crested Grebe (25), Mallard (130) and Goldeneye (22)". The synopsis concludes by stating "Lough Kinale and Derragh Lough SPA, whilst relatively small in area, is of conversation significance for holding nationally important populations of two species, Pochard and Tufted Duck."
359. The form Natura 2000 - Standard Data Form in respect of this site is stated to have a "first compilation date: 2004-03" and then an "update - 2017-09". This form contains in s. 3 ecological information which includes a list of "species referred to in Article 4 of Directive 2009/147 EC (Birds) and listed in annex 2 of Directive 92/43/EEC (Habitats) and site evaluation for them". The species listed in this section include Mallard, Tufted Duck, Pochard and others. The Natura 2000 Form is not the instrument designating the site. It is the prescribed form in which the State communicates to the Commission sites of importance for the Natura 2000 framework before the state then implements the designation by statutory instrument, as it is obliged to do pursuant to Article 4 of the Habitats Directive.
360. In submissions the parties adopted different approaches to the use of the different phrases, "conservation interests" and "conservation objectives". The obligation in Article 6(3) of the Habitats Directive is to perform an appropriate assessment, subject to the screening exercise, of each site, in view of the sites conversation objectives. The phrase "interests" is used in the S.I. itself whereas the phrase "objective" is used in the NPWS description of the generic conservation objectives of the sites.
361. The Board and the notice parties submit that a proper construction of schedule 3 is that the implications of the project for the two species listed by name, Pochard and Tufted Duck must be assessed and that the second part of the schedule headed "wetland and water birds" is intended to accord the protection of the S.I. to the wetland habitat which supports the named species and other water birds. They submit that the purpose of designation under the Directive is the protection of the site itself, due regard being had to the interests of species listed by name in the schedule. If the second part of schedule 3 had the meaning asserted by Mr. Sweetman, namely that every water bird which utilised the site must be treated as having been listed by the reference generally to "water birds" the following consequences would follow.
362. Firstly, the listing of any individual species, in this case Pochard and Tufted Duck would be superfluous.
363. Secondly, no reader of the statutory instrument or of any sign at the site could know from reading it what are the other species utilising the resource. Such a person would have to undertake research in relation to the Natura 2000 Form, the Site Synopsis and the Statement of Conservation Objectives all quoted above to understand the scope of the S.I.
364. Thirdly, para. 5 of the Statutory Instrument provides for serious fines and potentially terms of imprisonment for any contravention. It would be wholly unsatisfactory if, under pain of such potential sanctions a reader of the S.I. was unable to determine with certainty which other unnamed "water birds" were to be treated as listed.
365. Even if a reader were to undertake research to establish which are the water birds at any given time utilising the site, certainty could not be achieved even by researching the Natura 2000 Form, the Site Synopsis or the published conservation objectives. Each of those documents contains references to different species, at different dates. Therefore, the only definitive description of species of special interest which can be relied on is the two named in schedule 3 to the Statutory Instrument.
366. I have quoted earlier from the affidavit of Mr. Tierney, Wildlife Inspector at the NPWS. He expressed the opinion that the Statutory Instrument must be read to mean that only the two species listed as SCI's are listed as such and that the phrase "wetland and water birds" used as a third special conservation interest in the SPA has an "associated conversation objective; this conservation objective is for the wetland habitat itself, not the migratory waterbirds that use it (but it is additionally intended to benefit any migratory waterbirds that use it)." Thus, the only bird species that are SCI's for this SPA are those listed by name as SCI's i.e. (the Mallard is not an SCI for this site). The third SCI is the habitat itself, not another potential list of species.
367. Whilst Mr. Tierney's evidence is of assistance it cannot be treated as the definitive source for interpreting the S.I. Nonetheless it is significant that the evidence from the NPWS itself does not regard the S.I. as "listing" water birds other than those which have been named in the schedule 3.
368. The Pochard and Tufted Duck are themselves water birds, again illustrating that it would be superfluous to name them if in fact the second part of schedule 3 was intended to confer the same measure of protection on every water bird which is found at any given time to "utilise" the habitat.
369. It is a part of Mr. Sweetman's submission that the screening assessment of Lough Kinale and Derragh Lough took account only of the potential effects of the project on the two named species, namely Pochard and Tufted Duck. In para. 7.4.6.10 of the Inspectors report he focuses on the Pochard and Tufted Duck only as qualifying interests for the site and concludes that they were not identified as having used the project site and that there was no migration route or commuter route for those birds. However, it is not the case that the Inspector, or the developer in the Birds' surveys submitted, limited the examination to these two species. Extensive references were made to the wider aviation activity in part 7.3 of the Report. Part 7.3 relates to the Environmental Impact Assessment and caution must be exercised here because the test for EIA is not the same as for appropriate assessment under the Habitats Directive. Nonetheless, the contents of s. 7.3 of the Report are informative in that the Inspector turns his attention in 7.3.4.15 to surveys undertaken for wetland and water birds for an area extending six to eight kilometres from the main turbine site.
370. In para. 7.3.4.14 the Inspector refers to the Birds Appendix to the EIAR which had identified 78 species, 16 of which were Annex 1 species being species of community interest.
371. In para. 7.3.4.26 he refers to the assessment of the potential impact of the proposed development on other bird species finding that the potential impact was not considered significant.
372. At para. 7.3.4.28 the Inspector states the following "Other species identified within the wetland water bird counts included Common Tern, Goldeneye, Kingfisher, Pochard, Red Shank and Tufted Duck" and he states "but these were not recorded within the site or its buffer zone during surveys and connectivity with the site was discounted".
373. Table 3.1 of the Appropriate Assessment Screening submitted by the developer describes the 19 European sites "within the Likely Zone of the Proposed Works". For each one there is a statement of the name and designation number of the site, its distance from the proposed works, the "Qualifying Interests/ Special Conservation Interests for which the European Site has been designated" (per NPWS) and the "Conservation Objectives". In relation to Lough Kinale and Derragh Lough SPA the Table describes the Conservation Objectives as:
ˇ "To maintain or restore the favourable conservation condition of the bird species listed as Special Conservation Interests on this SPA; and
ˇ To maintain or restore the favourable conservation of the wetland habitat at the SPA as a resource for the regularly occurring migratory waterbirds that utilise it".
374. In addition to this information for each named site, the Table contains a general section headed "SPAs designated for migratory species in Ireland". Under this heading the Report states:
"Dedicated bird surveys have been conducted at the Coole site and surrounding area in accordance with Scottish Natural Heritage Guidelines (SNH 2014) between October 2015 and September 2017. A variety of field survey methodologies were utilised, having regard to the species composition and assemblages that were likely to occur within the study area."
The methodologies were then listed:
375. The conclusion in relation to this section is as follows:
"Survey methods have been undertaken in line with best practice guidelines (SNH, 2014) and provide coverage of the development site and surrounding environs. The results of the surveys provide detailed data to allow a robust assessment to be carried out. No significant records of migratory bird species were recorded during field surveys therefore it can be concluded beyond reasonable scientific doubt that the proposed development is not likely to have significant effects on migrating species".
376. The Respondent and the developer say that this statement demonstrates that the surveying was not limited to the species listed in the S.I. for each site, and therefore extended to all migratory birds, including the Mallard, a species which Mr. Sweetman claims was omitted from the surveys.
377. The Inspector states that he has considered the Appropriate Assessment Screening Report which is Appendix 1 to the NIS which provides a description of the surrounding area and the proposed development. He records also that he has had regard to the Site Synopsis and Conservation Objectives for the relevant Natura 2000 sites and to the entirety of the application document including submissions received, which includes the submission of the National Parks and Wildlife Service itself.
378. At 7.4.7.1 the Inspector makes his conclusion that the information which is on file and which was submitted to him was adequate to perform the screening determination and to conclude that the proposed development "individually or in combination with other plans or projects would not be likely to have a significant effect" on 16 of the named European sites which include Lough Kinale and Derragh Lough SPA.
379. In respect of one of the SACs which the developer in its Appropriate Assessment Screening Report had screened out namely Garriskil Bog SPA, the Inspector reached a different conclusion. His conclusion was that in relation to this SAC there was a "downstream hydrological pathway" with the proposed works and therefore a pathway from the turbine site to the Garriskil Bog SCA site and indirect effects on the supporting wetland habitat of that site could not be excluded. Whilst there was no challenge relating to that aspect of the decision made in these proceedings, it is illustrative of the real scrutiny to which the Inspector subjected the Appropriate Assessment Screening Report by the developer and rejected a 'screening out' where he found it necessary and appropriate to do so.
380. In Holohan the court considered Article 6.3 of the Habitats Directive and emphasised that an appropriate assessment of the implications of a plan or project for a European site requires that "all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect the conservation objectives of that site must be identified, in the light of the best scientific knowledge in the field".
381. The court noted that: -
"All aspects which might affect those objectives (as being the conservation objective) must be identified and since the assessment carried out must contain complete, precise and definitive findings in that regard, it must be held that all the habitats and species for which the site is protected must be catalogued. A failure in that assessment to identify the entirety of the habitats and species for which the site has been listed would be to disregard the above mentioned requirements and therefore...would not be sufficient to dispel all reasonable scientific doubt as to the absence of adverse effects on the integrity of the protected site. [Emphasis added].
The court continued: -
"As regards other habitat types or species, which are present on the site, but for which that site has not been listed, and with respect to habitat types and species located outside that site, it must be recalled that the Habitats Directive, as follows from the wording of Article 6.3 of that Directive subjects 'any plan or project not directly connected with or necessary to the management of the site but likely to have a significant affect thereon' to the environmental protection mechanism of that provision. ... The conservation objective pursued by the Habitats Directive, recalled in paragraph 35 of the present judgment, entailed that typical habitats or species must be included in the appropriate assessment, if they are necessary to the conservation of the habitat types and species listed for the protected area.
In light of the foregoing the answer to the first three questions is that Article 6.3 of the Habitats Directive must be interpreted as meaning that an 'appropriate assessment' must, on the one hand, catalogue the entirety of habitat types and species for which a site is protected and on the other identify and examine both the implications of the proposed project for the species present on the site and for which that site has not been listed, and the implication for habitat types and species to be found outside the boundaries of that site, provided that those implications are liable to affect the conservation objectives of the site". (Emphasis added)
382. The applicant relies on these paragraphs in the judgment in Holohan as authority for a proposition that in making an appropriate assessment the obligation on the Board is not limited to species named in the statutory instrument designating the site but extends also to all other species present on that site and for which that site has not been listed. On a proper reading of the judgment it is clear however that the court intended that the analysis would extend to species not listed in the designation instrument only where the proposed project has "implications liable to affect the conservation objectives of the site". No evidence was before the Inspector that the project had such implications.
383. This means that it is not necessary for the developer in the NIS or for the Board to undertake a process of identifying all those other species which may occupy the site from time to time, but which are not listed in the instrument of designation. The focus is protection of the species named and the site as a habitat in this case for waterbirds generally.
384. I am not persuaded that the Inspector or the Board erred by focussing its analysis on the two named species, when regard is had to the fact, as referenced numerously throughout the Inspector's report, that a comprehensive examination was made of the likely effects on species other than those for which the sites are listed or referenced, albeit that the conclusion of the wider examination of other species is to be found in the Environmental Impact Assessment (paras. 7.3.4.14 to 7.3.4.35).
385. As regards the habitat itself, the Inspector concluded that the project would not have a significant effect on the habitat in his finding at para. 7.4.6.7 that there is no hydrological connectivity between the project site and Lough Kinale and Derragh Lough SPA.
386. It is clear also that the Inspector did not simply undertake a "box ticking" exercise but critically assessed the extensive information submitted in the NIS and the AA screening report submitted by the developer. He had regard to submissions received including those from the NWPS itself, the party which submitted the Natura 2000 form to the Commission before the designation was implemented by the statutory instrument.
387. The applicant's ground must fail for two reasons. Firstly, as a matter of construction, the S.I. designating the site requires screening for appropriate assessment in respect of the two species named and not the indeterminate number of waterbirds which may from time to time utilise the site. Secondly, it is clear from a full read of the Inspector's Report that he did not limit his analysis to the two named species, but had regard to and evaluated the potential effects on numerous other species identified in the surveys submitted by the developer.
388. At para. 7.4.6.9 the Inspector concluded that there is a downstream hydrological pathway between Lough Derravaragh and the proposed site, because the River Glor flows through the main turbine site into the River Inny, which goes into and out of Lough Derravaragh, and other SPAs. This site was therefore screened in.
389. The same issue of construction of the S.I. which arose in relation to Lough Kinale and Derragh Lough SPA arises here. The designation of Lough Derravaragh SPA was pursuant to S.I. 287 of 2011. In schedule 3 it designates as special conservation interests four named species of birds namely the Whooper Swan, Pochard, Tufted Duck and Coot. Like the Lough Kinale and Derragh Lough SPA instrument, Schedule 3 then designates "wetland and waterbirds", and contains an identical provision to that which appeared in the S.I. for Lough Kinale and Derra Lough describing wetlands and waterbirds as follows:
"In establishing their Special Protection Area network, Member States are explicitly required under Article 4 of the Directive to pay attention to the protection of wetlands. To this end the wetland habitat that is contained within this Special Protection Area and the waterbirds that utilise this resource are therefore listed as a special conservation interest for this site."
390. The Site Synopsis relating to Lough Derravaragh SPA also identifies the four named species, Whooper Swan, Pochard, Tufted Duck and Coot as nationally important populations and states that the site is of major ornithological importance supporting national populations of these species. The synopsis recites that at times the site is used by a internationally important population of Greenland White Fronted Goose, based in the region and it names species which occur at the site, including Whooper Swan and Golden Plover, some of which are listed on Annex A to the Birds Directive.
391. The Generic Conservation Objectives published by the National Parks and Wildlife Service on 21 February, 2018, like the S.I., summarised the conservation "objective" as being firstly the four named species and secondly "to maintain or restore the favourable conservation condition of the wetland habitat at Lough Derravaragh SPA as a resource for the regularly occurring migratory waterbirds that utilise it".
392. Finally in relation to this site the Natura 2000 Standard Data Form, stated to have a "first compilation date of 2004-03" and an "update of 2017-09", describes species found on the site, including the four which were designated and others including Mallard.
393. In Part 11(12) above I have analysed the corresponding documents for Lough Kinale and Derragh Lough SPA and stated my conclusion that the Board's obligation of assessment in relation to these sites was in respect of the named species, and that the use of the phrase "and the waterbirds that utilise this resource" under the heading Wetland and Waterbird does not mean that there was an additional obligation on the developer or the Board to investigate the identity of all waterbirds which can be said to have utilised the resource from time to time. Otherwise, the naming of the four species in the first part of schedule 3 would be superfluous.
394. The purpose of the designation is to protect the wetlands which support all waterbirds which utilise the resource and it is in this context that "waterbirds" are listed as a special conservation interest. I agree with the description by Mr. Tierney, of NPWS, that the second of the interests, described as an objective in the Site Synopsis and in the published conservation objectives, is the habitat itself, noting that the purpose of referencing the habitat is to support the migratory birds that use it and waterbirds found to be utilising the site.
395. It is not necessary for me to repeat that analysis and I turn now to the analysis which the Inspector applied to Lough Deravaragh in his appropriate assessment.
396. Having identified the existence of a downstream hydrological pathway between Lough Derravaragh SPA and the turbine site and screened in the SPA, the Inspector considered the four species named in the statutory instrument. S.I. 287 of 2011.
397. The Inspector found in respect of Pochard and Tufted Duck (para. 7.4.6.10) that these species were not identified to be using the project site during any of the surveys and that a migration of a commuter route for these birds was not identified. He concluded therefore that there was no direct or indirect impacts to these bird species anticipated.
398. The Inspector found (para. 7.4.6.11) that Coot were not recorded breeding or roosting on the turbine site or within the collision risk zone. Although the population of Coot at the SPA Lough Derravaragh itself was 1,358, as recorded in the NPWS Natura 2000 forms, the low numbers of birds found at the turbine site was such that the potential risk to this species arising from the proposed development would not be significant.
399. In respect of the Whooper Swan, the Inspector found firstly in his screening report at 7.4.6.12 that the turbine site would be at the outer reaches of the winter foraging range for Whooper Swan from Lough Derravaragh SPA. Therefore further assessment of the effects of the proposed development on the Whooper Swan associated with Lough Derravaragh SPA was required.
400. In relation to the SPA itself the Inspector noted (para. 7.4.9.6):
"Whooper Swan were recorded at Lough Derravaragh (3-40 birds) during bird surveys undertaken by the applicant. The applicant notes that the flights recorded were 6.5 km from the SPA site and it could therefore be concluded that the observed birds were not associated with the internationally important population at Lough Derravaragh."
401. The appropriate assessment in relation to Whooper Swan at Lough Derravaragh SPA was undertaken in para. 7.4.9.7. The Inspector noted that no sightings of Whooper Swan were recorded utilising the habitat within the site boundaries and therefore a direct loss of habitat would not arise.
402. Whooper Swan were recorded approximately 200 metres north of the proposed turbine T02 and therefore the potential for displacement was explored. The Inspector says that "based on the findings of empirical studies it was concluded that significant disturbance would not arise during construction and operation given the existing regular activity on site associated over the commercial peat operation, as well as the separation distances. Collision risk assessment was calculated based on data collated and this is estimated to result in potential for one bird collision every 37 years. This was considered insignificant by the applicant in the context of the local county national and international population for this species. The evidence available reveals that habitat would not be lost for the species, the species would not be displaced, nor would there be significant risk to loss of species via collision and it can be concluded beyond reasonable scientific doubt that significant adverse impacts on the conservation objectives of the Lough Derravaragh SPA would not arise."
403. The Inspector continued his conclusion in para. 7.4.9.8 as follows:
"I am therefore satisfied that the development would not cause changes to the key indicators of conservation value, including water quality for the bird species, Whooper Swan, hence there is no potential for any adverse impacts to occur on either the species or the habitats associated with Lough Derravaragh SPA ..."
404. Mr. Sweetman says that only the Whooper Swan was assessed for collision risk. He submits that the Pochard, Tufted Duck and Coot were disregarded "because of their reported absence from the development site on the bird survey dates". In the Statement of Grounds no complaint is made as to the omission from appropriate assessment of the Pochard, Tufted Duck and Coot. Nonetheless it is clear from the screening exercise undertaken by the Inspector that they were "screened out" for the stated reasons, in the case of Pochard and Tufted Duck, that they were not identified to be using the project site during surveys and a migration or commuter route was not identified and therefore no indirect impacts were anticipated, and in the case of Coot the numbers were so low that the potential risk to the species arising from the proposed development would not be significant (paras. 7.4.6.10 and 7.4.6.11 respectively).
405. In the Statement of Grounds it is claimed at para. E 27 that in the case of Lough Derravarragh SPA the conservation "objective" was, as per schedule 3, "all water birds". It is therefore said that there should have been considered as conservation objectives for the site at least the Mallard, Little Grebe, Moot Swan, Great Crested Grebe and great Cormorant. The analysis in relation to the Whooper Swan is clearly stated in paras. 7.4.9.6 and 7.4.9.7 where the Inspector notes and agrees with the developer firstly that Whooper Swan were recorded 6.5 kilometres from the Lough Derravarragh SPA and secondly that as far as the turbine site itself was concerned the collision risk was calculated and estimated to result in the potential for one collision every 37 years.
406. For the reasons stated earlier, I agree with the respondents and the notice party that on a proper construction of the instrument designating the sites there was no obligation to search for and identify further species of waterbirds in addition to the four named in the first part of schedule 3. Even if this construction were incorrect, it is clear that the Inspector considered also the wider question of species other than those named (paras. 7.4.6.18). He refers to the assessment of wintering, breeding and migratory species (para. 7.3.4.15), and other bird species identified either within the site or its buffer zone (para. 7.3.4.26), and wetland water birds generally. In para. 7.3.4.28, he states that this information was taken into account by him in his appropriate assessment. The claim that the Board erred in its appropriate assessment of the effects of the project on the integrity of Lough Derravaragh SPA must fail.
407. Apart from the grounds specific to the sites of Lough Kinale and Derragh Lough SPA and Derravarragh Lough SPA, Mr. Sweetman complains at ground E29 that the birds survey informed a bird collision risk assessment which assumes a high level of avoidance of the turbines by the bird species it does assess.
408. In para. E57 the applicant claims that the bird survey contained lacunae and reasonable scientific doubt and in para E58 that the issue of avoidance by birds of the windfarm was assumed as a positive factor in the minimisation of collisions with turbines but "the Board erred in failing to assess properly or at all the effect of displacement on the European sites". That is the full extent of the particulars of this ground. No evidence was adduced to support the contention that the Birds Survey was inadequate, or that the Board erred in its assessment by relying on the Survey.
409. The subject of birds is treated extensively in s. 6 of the EIAR and separately in the Natura Impact Statement and the screening report.
410. The EIAR describes applicable domestic and EU legislation and extensive sources of guidance published internationally and in the State. Reference is made to planning policies relevant to this application, national, regional and local including the policies of the Westmeath County Council, the Department of Environment Community and Local Government, the European Commission, the Environmental Protection Agency, and the National Roads Authority. Scoping consultation was undertaken with the National Parks and Wildlife Service, the Development Applications Unit of the Department of Arts Heritage Regional Rural and Gaelteacht Affairs, Bat Conservation Ireland, Inland Fisheries Ireland, the Irish Peatland Conservation, the Irish Raptor Study Group, Irish Wildlife Trust and Bird Watch Ireland whose recommendations are expressly stated to have been considered as part of the assessment. The Bird Watch Ireland Wind Energy Development Sensitivity Mapping Tool and associated Guidance document was consulted in the desk study and impact assessment.
411. Mr Sweetman's grounds and submissions contain no recognition of the scale and depth of information consulted when preparing the Birds Survey.
412. The Reports explain that the methodology for assessment followed a precautionary screening approach with regard to the identification of key ornithological receptors. Following a comprehensive desk study initial site visits and consultations a list of target species likely to occur in the zone of influence of the development was made. The observation and survey work on the site was specifically designed to survey for these identified targets species in accordance with Scottish National Heritage Guidance (2014). That target species list was drawn from:-
ˇ Annex 1 of the Birds Directive
ˇ Special Conservation Interests (SCI) of Special Protection Areas (SPA) within the zone of likely significant effects.
ˇ Species protected under the Fourth Schedule of the Wildlife Acts 1976 - 2012
ˇ Red listed birds of Conservation Concern.
413. The EIAR records that it was possible to sift the list of target species to identify key ornithological receptors and exclude species which were not recorded during the extensive surveys and to exclude those for which pathways for significant effect could not be identified.
414. A detailed description is given of the construction of field surveys, initial site assessment, the survey season taken, the vantage surveys, view shed analysis, a breeding birds quadrat/walkover survey, the breeding raptor survey, woodcock survey, winter transect survey, wetland and water bird counts. The report assesses the potential effects associated with the development in terms both of direct habitat loss, displacement and death through collision or interaction with turbine blades.
415. Based on the sources of policy and guidance referred to earlier the report sets out the evaluation criteria and impact assessment methodology for birds and provides a detailed description of the suite of surveys undertaken.
416. Bird surveys were not undertaken or required along the route of the intended grid connection. This is because the proposed cable route will be located within the carriageway/verge of existing public roads and it is said that existing habitats do not have potential to support species of conservation interest in the area. Therefore, the grid connection does not have the potential to result in any habitat loss or displacement of bird species of conservation interest.
417. The report then identifies the designated special areas of conservation and special protection areas within a buffer zone of 15 kilometres from the proposed turbine site, all of which were considered in the context of appropriate assessment. For each of these sites there is a careful description of qualifying interests, conservation objectives and a description and identification of pathways which may be affected. These were considered in detail by the Inspector.
418. The Bird Sensitivity Mapping Tool used in the report was developed by Bird Watch Ireland. Applying that tool the windfarm was found to be not located within an identified bird sensitivity zone. It is said that low sensitivity zones are located to the southeast and west of the site within ten kilometres of the boundary. However, there are no high sensitivity areas within a 30 kilometre radius of the site boundary.
419. The result of the field survey was the preparation of a list of all bird species recorded within the study area and contained in appendix 6-1 to the report. The target species listed were then recorded within the zone of influence and a list was prepared in accordance with their conservation significance, noting the rationale in each case for their inclusion being either the Birds Directive, the Red List of birds of Conservation Concern Ireland prepared by Bird Watch Ireland and the Royal Society for the Protection of Birds in Northern Ireland, species specifically listed as conservation interest in the special protection areas designated within the zone of influence, and species identified in the Wildlife Act. Sixteen such species were identified as targets and in respect of each of these the report includes a result of vantage point surveys, winter walkover surveys and wetland waterbird counts.
420. An evaluation is then undertaken in respect of species considered to be important. In a detailed table at 6.11, particulars are given of the conservation status of the identified species and the rationale in each case for including or excluding any.
ˇ Assessment of "do nothing" effect.
ˇ Assessment of effects relating to sites designated for nature conversation.
ˇ Assessment of effects in relation to key ornithological receptors.
ˇ Summary of potential effects associated with proposed infrastructure associated with the project.
422. It is said that all elements of the proposed development were considered namely: -
ˇ Turbines;
ˇ Borrow pit excavation including rock breaking (substation and grid connection);
ˇ Tree felling;
ˇ Other infrastructure such as roads and the construction compound;
ˇ Junction accommodation and upgrade works.
423. The EIAR cross refers to the NIS in relation to the designated sites.
424. Each of the key ornithological receptors is considered in a series of tables in Part. 6.5.3 by reference to its significance and the potential effect of the construction phase, the operational phase and the decommissioning phase. In the case of each species the description is broken down between construction phase, operational phase and decommissioning phase and a description of the relevant aspect of the works is provided to assess the potential effects on each individual species. The results are "no effect", "short-term slight negative effect", "long-term slight negative effect" and some with "long-term imperceptible negative effect".
425. Finally, the EIAR contains an assessment of cumulative effects. In performing this part of the assessment reference is made to a review of online planning registers and an identification of past and future projects and their predicted environmental effects. The identified projects with which any such effects may arise were other wind turbines, ongoing peat extraction and forestry. No other projects were identified. The report concluded that there were no potentially significant residual disturbance, displacement or habitat loss effects reported for any of the receptors associated with any of the projects referenced. There was no evidence to suggest that the development site was on a flyway for migratory birds or a commuting corridor and no residual effects from other plans and projects in the area were identified which would be of any additional effects with regard to habitat loss, displacement or collision mortality.
426. The conclusion of this section of the EIAR was as follows: -
"No significant effects are predicted on birds due to direct habitat loss or displacement during the construction or operational phases of the proposed development. Collision risk calculations do not indicate that the development will have significant effects on any KOR recorded either in insolation or cumulatively with other projects.
Effects of decommissioning are predicted to be shorter and less than obtrusive effects arising from construction. Decommissioning will take place over a shorter period and decommissioning work will be significantly less than the works associated with construction.
The proposed Coole Windfarm Development will not have any significant residual effects on any KOR either in isolation or cumulatively with other projects."
427. The applicant alleges (Ground E29) that the bird survey informed a bird collision risk assessment which assumes a high level of avoidance of the turbines by the bird species it does not assess. He claims that there was no or no proper assessment of the risk that birds may be displaced away from a European site as a result of the operation of the windfarm.
428. The collision risk assessment model exhibited is a document prepared by McCarthy Keville O'Sullivan Limited. It contains a detailed introduction and description of the methodology applied. It recites that the collision risk is calculated using a mathematical model to predict the numbers of individual birds of a particular species, that may be killed by collision with moving wind turbine rotor blades. The modelling method follows Scottish Natural Heritage guidance and two stages are involved in the model. Stage 1 is determination of the number of birds or flights passing through the airspace swept by the rotor blades of the wind turbines. Stage 2 is the calculation of the probability of a bird strike occurring. The report states that the product of stages 1 and 2 is to give a theoretical annual collision mortality rate on the assumption that birds make no attempt to avoid colliding with turbines. It is said that the model has been the subject of academic assessment and the academic authorities were cited, although it recognises that the results should be interpreted with a degree of a caution.
429. The assumptions made in the calculation of risk are set out in detail and include the following:-
ˇ Birds in flight within the study area at heights between 25 metres and 175 metres are assumed to be in danger of collision with the rotating turbine blades. This is described as a precautionary approach since the lower end of the swept area of the turbine blades will be 35 metres.
ˇ Avoidance factors of individual species are those currently recommended by SNH.
ˇ No reference was taken for birds using flapping or gliding flight through the study area.
ˇ Before completing the work, a precautionary method was used for the collision risk model, whereby all species at risk were considered to be present in the area, giving the worst case scenario. The survey was performed over a period of two years, and it is said that, after completing the full two-year survey period and confirming the absence of certain species, the appropriate bird availability could be calculated and used in the collision risk model.
430. No expert or other evidence was adduced by the applicant to support his very general assertion made, both in his Statement of Grounds and in his grounding affidavit sworn on 17 May 2019, to the effect of that assumptions made regarding the avoidance of turbines by birds assessed was inappropriate or unsatisfactory. This Court cannot second guess the judgment of the Inspector when he considered and assessed this extensive research and information, and this ground must fail.
431. The grounds stated and the submissions of the applicant sought to draw the court in to performing the assessments which are the function of the planning authority and the Board, an approach which would disregard all of the established principles informing the exercise of the court's jurisdiction. The standard of review is still the O'Keeffe standard of rationality. The onus is on the applicant to establish, not merely by the general assertions in his statement of grounds which I have quoted earlier, but by identifying particular lacunae or other omissions on the part of the Inspector or the Board, that there has been a failure to perform the required Environmental Impact Assessment. The requirement of the Directive and of Part 10 of the Act is that the Board should ensure that it has informed itself of the effects of the project on the factors identified in s. 171A, and in the Directive itself, and made an informed decision as to the giving of consent in light of its assessment of those factors. The Inspector referred to the relevant legislation, guidelines and published research. He cannot be expected to repeat throughout his report each and every guideline, recommendations, legislative provisions and statutory instrument which relate to each of his findings.
432. The Inspector and the Board each state that they had regard to the reports submitted, the statutory and other guidelines, and the submissions, which include the submissions and observations of the National Parks and Wildlife Service, which the applicant suggests were not taken into account. I am satisfied that the Inspector and the Board informed themselves in the manner required by the Directives and the Act. The Board was, therefore, sufficiently informed and competent to make the decision it made. Any concerns which remained, as far as the Board was concerned, are identified and addressed in the conditions to the decision.
433. In relation to appropriate assessment, it is evident the Board had before it an NIS and a screening report which was not limited to the individual species named in the statutory instruments designating the sites and which referenced other species addressed elsewhere in the Bird Surveys.
434. It cannot be said that there was no relevant material before the Board on which it based its decision, or that it acted irrationally in its assessments. The grounds relied on by Mr. Sweetman are not made out, and his proceedings will be dismissed.
435. Section E of the Action Group Statement of Grounds runs to 44 paragraphs. There is extensive overlap between these grounds (and some overlap with Mr. Sweetman's grounds), and I have considered them under grouped headings.
436. The Action Group claims that the basic particulars required to accompany the developer's application did not comply with the Act and with Articles 22 and 23 of the Planning and Development Regulations 2001.
437. The first response made by the Board in relation to this ground is that it was the duty of the planning authority Westmeath County Council to verify whether the procedural requirements of the Regulations were complied with. It submits that the planning authority received the application and did not invalidate or refuse the application on the basis of any procedural invalidity, and that since no appeal or challenge was made to the decision of the planning authority to treat the application as compliant with the Regulations this ground of is out of time.
438. The Action Group submit that since the authority refused permission, they had no reason to appeal or challenge that decision in any respect. They submit it would be unjust if, they having made their observations to the authority, and the authority having refused planning permission, they were now closed out from advancing these grounds. I accept that submission.
439. Section 37 (1)(b) of the Act provides that "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".
440. The predecessor of this section, namely s.26 of the Act of 1963 was considered by Costello J. in O'Keeffe v. An Bord Pleanála [1993] 1 IR 39 where he stated that this section meant that the Minister, now the Board, is on an appeal considering the matter "de novo" and without regard to anything which transpired before the planning authority.
441. This principle was restated by Haughton J. in Alen Buckley & Ors. v An Bord Pleanála [2017] IEHC 541 where he stated:
"I find that the duty of the Board in the course of the appeal process is to undertake a full de novo assessment of the application before them."
442. This disposes of the Board's preliminary objection on this issue. The absence of any challenge to the WCC decision to treat the application as validly made does not close out the Action Group from making its case in these proceedings regarding the requirements to submit plans, drawings and specifications which conform with the Regulations.
443. The first two instances of this ground are stated in para. E2 as follows.
444. Firstly, that the information on the treatment system proposed for disposal of waste water and the evidence of suitability of the lands for the system proposed was not submitted.
445. Secondly, that the obligation contained in Article 22(2)(g) of the Regulations to provide the written consent of the owners of relevant land was not complied with.
446. The Board says that it performed its own assessment of the planning documents on the file transmitted to it, including the original planning application, and was in a position to assess that the information provided was adequate having regard to the original application form, the plans submitted and the descriptions contained in the EIAR and supporting drawings.
447. The Inspector concluded in s.3.2 of his report (page 11 of 166) that the submitted proposals for water supply and waste water treatment both at construction and operational phases are acceptable. The treatment of waste water is addressed in s.8-14 of the EIAR where a description is given to the manner of disposal of waste water effluent:
"Welfare facilities will be provided at the substation. Waste water effluent will be collected in an underground concrete holding tank and periodically emptied by a licensed contractor for the operational phase of the wind farm."
448. The drawings included with the application include at drawing 0930-41 an illustration of "waste water holding tank typical details".
449. I return later to the criticisms made by the applicants of many of these drawings which are described as "typical" or "sample". Drawing number 0939-41 is in basic and simplistic form. Nonetheless the Inspector was entitled to read these drawings together with the narrative description of the plans for the treatment and disposal of waste water effluent described in para. 8.4 of the EIAR. The Board were entitled to accept this as compliant.
450. The second objection made in para. E2 relates to the alleged absence of evidence of consent by relevant land owners, as required by Article 22(2)(g) of the Regulations. Addendum 1 to the developer's original application to Westmeath County Council contains a schedule identifying the relevant land owners and a letter of verification is provided by Messrs. P.J. O'Driscoll Solicitors acting for the developer reciting the terms of agreements and licences with landowners, all of which include provisions granting consent to the making of the application.
451. This aspect was considered by the Inspector at para. 7.5.5 of his report. He states that he is satisfied that the developer has provided sufficient evidence of legal interest in the site to make the application. The Statement of Grounds contains no particulars of what further verification ought to have been obtained of landowner consents. It is not the function of this court to second guess the determination by the Board that this information met the requirements of Article 22(2)(g).
452. A separate complaint is made by the Action Group in relation to the consent of landowners who may be affected by the grid connection route, a subject to which I return later.
453. Article 23(1) (a) to (h) of the Regulations identifies very particular requirements in relation to such matters as the scale of site and layout drawings, plans, elevations and sections, requirements regarding the illustration of levels and contours of plans including floor plans, ordinance survey sheet numbers in respect of maps and other such requirements. The Action Group claim that plans, drawings and maps required to complete the application in accordance with Article 23(1)(a) were not submitted in a manner which complies with the obligations of those sub paragraphs. It is submitted that the Regulations require separate plans and drawings of all structures, and therefore in respect of each of the thirteen turbine structures. It is submitted that individual drawings for each turbine are fundamental to the making of a valid application, and were not provided.
454. It is claimed that the consequence of the absence of such detailed drawings showing all of the specifications and dimensions of the individual turbines is that the Board ought to have treated the application as invalid.
455. The submission is that the drawings provided with the application simply identify typical turbine structures. It is said that there are no, or no adequate details provided in respect of their individual design or the particular characteristics of the land upon which they are to be constructed.
456. The submission continues that the obligations in the Regulations require a site-specific design for each of the thirteen wind turbines and must contain a detailed profile of excavations required in respect of the connections between them, and detailed design of the road layouts and the borrow areas.
457. In addition to compliance with the Regulations, the Action Group's submission was expanded to claim the particulars provided are so inadequate that it is not possible to identify the likely significant effects of the structures, for the purpose of performing valid environmental impact assessment.
458. The Action Group also submit that in the context of appropriate assessment for the Habitats Directive the requirement is all the more compelling having regard to the requirement to establish that the development will not adversely affect the integrity of any European sites screened in for appropriate assessment.
459. Article 23.1(f) of the Regulations requires that plans submitted must include:
"Plans and drawings of floor plans, elevations and sections shall indicate in figures the principal dimensions (including overall height) of any proposed structure and the site, and site or layout plans shall indicate the distances of any such structure from the boundaries of the site." (emphasis added)
460. The drawings annexed to the developer's application include, for each turbine individually a "site layout plan". This demonstrates the dimensions of the base of the turbine, its associated hard standing areas and the areas which will be maintained clear of obstruction and an illustration of the turbine sweep area.
461. Next is a series of drawings which are described as "typical". The first of these is a "typical turbine hard stand layout standard detail". This illustrates the dimensions of the foundation, the main hard stand surrounding the turbine base and the distances from the on-site roads and areas to be kept clear.
462. Next are a "wind turbine front elevation" and a "wind turbine side elevation and plan". The front elevation shows the appearance of the tower, the turbine blades, and the dimensions of the foundation and an access stairway.
463. The side elevation shows the dimensions of each of the tower, the nacelle, which is the piece linking the tower to the turbine blades, and of the blade.
464. These diagrams show a maximum height for the turbines from the ground of "up to 175 metres".
465. The applicants complain that a maximum height is a not dimension for the purposes of Article 23.1(f) and submit that there is no exception for wind turbines.
466. The respondent and notice party submit that these drawings comply with the requirements of the Regulations. They say that the drawings illustrate the tip height of the turbines at a maximum of 175 metres and that the exact specifications of the turbines will depend on a competitive tendering competition which they say is a necessary result of the rapid pace of progress in turbine design. It is said that turbine designs available at the commencement of the planning process may no longer be in production by the time it comes to procurement of suitable models for the site. They submit that drawings are in any event sufficient to demonstrate the principal dimensions, quoting the text of Article 23, including the turbine sweep path. They submit that all of this is clearly demonstrated by the drawings and enabled the Action Group in their own submissions to the planning authority to address the scale of the turbines.
467. The Action Group submit that in the absence of specific dimensions for each of the thirteen turbines what has been submitted are generic plans which are expressly stated to be subject to later design.
468. In Paragraph 2.1 of his Report the Inspector refers to the height and other dimensions of the turbines. Throughout the Report he refers again to the drawings. In paragraph 7.3.4.10 he has regard to the drawings and dimensions when considering set back distances and clearance between rotor blade and habitats. He clearly regarded the drawings as sufficient to inform the recommendations of Condition No.7 in the Board's order as follows:
"The hub height shall not exceed 105 metres, the tip height shall not exceed 175 metres, and the blade length shall not exceed 70 metres. Details of the turbine design, and hub height, tip height and blade length complying with these limits, shall be submitted to and agreed in writing with the planning authority prior to commencement of the development. The wind turbines, including tower and blades shall be finished externally in a light grey colour."
469. Condition 7 also addresses such matters as the laying of cables underground, the requirement to ensure that the blades rotate in the same direction, and a prohibition of advertising material on any structures on site.
470. The Action Group's submissions on this issue rely on a reading of the drawings only, as though no other descriptive information had been provided, which is incorrect. Even in the context of compliance with the requirements of the Regulations to show specifications and dimensions in drawings, it was in my view open to the Board to have regard also to the narrative descriptions contained in the EIAR, as the Inspector did.
471. The EIAR contains extensive detail in relation to the design of the turbines. In s. 3.3.1.2 a description is provided of the four main components of each turbine namely the foundation unit, tower, nacelle (turbine housing), and rotor. The description continues:
"The proposed wind turbines will have a tip height of up to 175 metres. Within this size envelope, various configurations of hub height, rotor diameter and ground to blade tip height may be used. The exact make and model of the turbine will be dictated by a competitive tender process, but it will not exceed a tip height of up to 175 metres. Modern wind turbines from the main turbine manufacturers have evolved to share a common appearance and other major characteristics, with only minor cosmetic differences differentiating one from another. The wind turbines that will be installed on the site will be conventional three blade turbines, that will be geared to ensure that rotors of all turbines rotate in the same direction at all times. The turbines will be white or off-white matt in colour.
For the purposes of this EIS/EIAR various types and sizes of wind turbines within the 175 metre tip height envelope have been selected and considered in the relevant sections of the EIS/EIAR to assess the worst case scenario. Turbine design parameters have a bearing on the assessment of shadow flicker, noise, visual impact, traffic and transport and ecology (specifically birds), as addressed elsewhere in this EIS/EIAR. In each EIS/EIAR section that requires the consideration of turbine parameters as part of the impact assessment, the turbine design parameters that have been used in the impact assessment are specified.
At the turbine selection stage of the project, pre-construction, new turbine models or variants may be available that were not on the market at the preplanning and EIS/EIAR preparation stage, which will better suit the site and fit within the proposed size envelope. Should this circumstance arise, the specific parameters of the new turbines will be assessed for their compliance with the criteria set out and considered in this EIS/EIAR, the relevant guidance in place at the time and any conditions that may be attached to any grant of planning permission that may issue.
A drawing of the maximum size envelope of the proposed wind turbine is shown in figure 3.2. The individual components of a typical geared wind turbine nacelle and hub are shown in figure 3.3 below."
(These are the wind turbine front elevations and nacelle and hub components referred to elsewhere in the drawing submitted with the application)
472. There follows a detailed description of the design and mode of construction for the turbine foundations for hardstanding areas, and for the assembly area. Detail is provided of the construction methodology for the turbine foundations, the site roads, crane pad areas and related works.
473. The respondent and the notice parties refer to the extensive examination, particularly in chapter 7 of the EIAR under 'Peat Stability Assessment' of the effect of the construction of the wind turbines on the peatlands.
474. These aspects were considered in detail by the Inspector in his examination of the effects on soil and peatlands at paras. 7.3.5.5 onwards in his Report.
475. The Action Group submit that the visual impact of the turbines is not perceptible from the drawings contained in the application. Again, this submission requires a reader to confine his examination to those drawings without any reference to all the information contained in the EIAR, which the Board was not obliged to do.
476. Volume 2 of the EIAR is a photomontage booklet containing illustrations of the visibility of the turbines from 21 separate locations and an additional set of photomontage illustrating their visibility in the context of the cultural heritage of the location.
477. These photomontage were examined by the Inspector in paras. 7.3.6.11 to 7.3.6.23 of his Report. He records that the accuracy of certain of the montages was queried by a number of observers. His assessment is not uncritical, but he concludes that these montages"were prepared and presented in a reasonable and competent manner".
478. The Inspector continues (in his para. 7.3.6.14):
"Due to the generally flat topography of the area in which the windfarm is to be situated, it is apparent that the turbines would be visible from a wide range of locations. For comprehensiveness viewpoints could also have been taken from the railway line and selected lake waters within the ZTV (zone of theoretical visibility). I also submit that there would also be a material visual impact from the immediate surrounding area, which are not picked up in the photomontages."
479. He refers to the locations from which there are no images included within the photomontages and concludes this section by stating the following:
"Whilst photomontages taken from these vantage points would have been beneficial, I have visited and considered the impact of the proposed development from each of these locations, therefore their absence is not detrimental to the assessment. I propose to address the proposal in the context of Newcastle House, in further detail under s. 7.4.5.33 addressing cultural heritage."
480. The Inspector identifies that on certain of the regional roads nearby the windfarm would become visually significant. From certain even closer viewpoints on the local road network the windfarm would he says "form a dominant element in the landscape".
481. At para. 7.3.6.23 the Inspector concludes in relation to this aspect as follows:
"As noted in the WEDG and in the County Development Plan (section 10.5) there is a need to balance the preservation and enhancement of the amenities of places and features of natural beauty and interest against the need to develop key strategic infrastructure in a manner that is consistent with proper planning and sustainable development. In conclusion, the proposal would have a significant visual impact from roads in the immediate vicinity and from residential properties therein, in locations where screening is not available or maintained. I submit that in view of the long-established commercial peat extraction operations, that the landscape presents itself as a highly moderated working landscape that is relatively robust. The visual character of the wider landscape has changed and would change further as a consequence of the proposal and would not result in a material alteration of visual intrusion as to warrant a recommendation to refuse permission."
482. The Inspector refers to observations made by third parties and their queries regarding the adequacy of the photomontages. It is apparent from his report that, having considered those observations, he concluded that the photomontages together with the drawings appended to the application and the narrative description contained in the EIAR were sufficiently detailed to enable him to make his recommendation and to recommend the condition which became condition no. 7 in the Board decision as to the design requirements for the turbines.
483. In Alen Buckley & Ors. v An Bord Pleanála [2017] IEHC 541, a complaint was made that the site notice was inadequate inter alia because of a failure to state the blade length and rotor diameter dimensions for the turbine.
484. Haughton J. had the following to say:
"The most important physical feature is the overall height of the proposed structure. This was correctly stated, and would have alerted members of the public to the nature of the proposed development. Beyond this the details of the planning application, including the drawings showing a sample turbine with a height of 126.6 metres made up of rotor blade length of 45 metres and with a hub height of 81.6 metres could be inspected on line or at the local planning authority offices. Further there was no evidence whatsoever to suggest that the applicants or any members of the public were under any misapprehension as to the overall height of the turbines or the maximum height of the component parts." (emphasis added)
485. Although this passage arose from an objection relating to the site notice it is clear that the court adopted the view that there was no prohibition on the use of drawings showing a sample turbine, provided a reader can see the critical information regarding the height and other dimensions of the turbines.
486. The Action Group submit that because each of the turbines would be constructed at different locations certain amounts of bog excavation have already occurred due to what the applicants describe as indeterminate amounts of commercial turf harvesting. There is at each location already a void, resulting from the peat extraction works, in the bog. It is submitted that that void is a structure and any reader of the plans must know the extent of what was already at each location and what will be constructed in the way of further excavation or support for the turbine itself. It is submitted that as such information is not provided in relation to each of the turbines individually on a site-specific basis, no reader will understand the extent of the further works required and the extent of the work associated with the construction not only of the turbine but also the surrounding hard standing areas.
487. The developer's application and the supporting reports all recognise that there will be differences between the state of the ground at each turbine, and some of these differences would only become clear when works commence. The anticipated dimensions of foundations were shown in the drawings submitted. This claim is a classic instance of searching for complications and I am not persuaded that the Board erred in accepting that the specifications submitted met the basic requirements of the Regulations.
488. The only drawing or plan which is alleged in the Statement of Grounds to be inadequate as regards Article 23 are the drawings of the turbine structures. In the course of submissions, the Action Group sought to expand this complaint to other features of the drawings. For example, they referred to a drawing of "typical clear span bridge (crossing 1)" and a second such drawing for "typical clear span bridge (crossing 2)". These drawings are provided in respect of two water crossings within the turbine site. They are noted by the Inspector in his Report at para. 2.1 where the works are described to be:
"Two watercourse crossings on the turbine site, including a five metre clear span bridge replacing the existing timber bridge over the river Glore and a three metre clear span bridge over the main drain to the south of proposed turbine T01".
489. The Action Group complains that these drawings include a note that the bridge structure will be "to engineers spec." meaning that the bridge has yet to be designed. They complain also that no illustration of the height dimension has been provided despite the fact that the bridge would clearly be a structure. In fact the text of the EIAR contains a narrative description of the manner of construction of the water crossing bridges. (s. 3.8 of the EIAR)
490. Among those parties who made submissions to the Board were Inland Fisheries Ireland which made a number of observations in relation to the developer's application including their statement of a requirement that a works method statement be provided regarding culverting and cabling works. IFI submitted that it should be consulted in relation to the water monitoring programme and related matters. It made no objection to the quality or completeness of the drawings and information about the bridges.
491. Throughout the Inspector's report he refers to the drawings which are the subject of the criticism by the Action Group, and the narrative descriptions of the proposed methods of construction, with illustrations, contained in the EIAR. He states at para. 7.3.1.4 that he has "carried out an examination of the information presented by the appellant, including the EIAR, and the submissions made during the course of the appeal and application". He records that he received certain submissions and observations in relation to the detail contained in plans and drawings. He concluded that they are adequate in terms of their detail to enable him to make a recommendation, which was accepted and adopted by the Board.
492. I have referred in Part Ten of this judgment to the extensive case law from which it is made clear that it is not the function of this court to second guess the judgment which is exercised by the Board on these applications.
493. It would follow from the Action Group's submission that a developer must submit with the planning application design and specification of individual turbines at a level of specificity which is typically only entered into in the course of a tender and procurement process after planning permission is obtained. Were this to be required, there is every reason to believe that the developer would then be tied to a specification which would be not only out of date but may no longer be the most appropriate product for the site from all perspectives, including environmental considerations.
494. The Action Group went so far as to suggest that the motivation for leaving such items in general form in the planning application was to ensure that the developer did not through the planning permission decision become tied to a set of specifications which would prove more costly than first envisaged. That is a wholly speculative submission and I could not decide the case on the basis of attributing such a motive.
495. The Action Group say that when it comes to the requirements of the Regulations or to the detail of drawings, specification and dimensions, no exception is made for wind turbines, which clearly are structures which require permissions. That is correct, but however basic and simple the drawings appear, the Board was clearly acting within its sphere of expertise and competent to treat these illustrations, combined with the narrative descriptions, as adequate. In Alan Buckley, Haughton J. held that this degree of information was sufficient.
496. The Board was entitled to have regard to the totality of information submitted. This means it was entitled to read the plans, drawings and specifications in conjunction with the detailed narratives contained in the EIAR and other reports submitted. Taking this into account, I am not persuaded that the Board erred in treating the application as validly made.
497. Permission to construct a connection to the national grid was not sought in the developer's application or granted by the Board. In O'Grianna, Peart J. held that because a windfarm cannot function without a grid connection, the windfarm and a grid connection are one integrated project for EIA purposes and therefore must be assessed together. Any EIA of either the windfarm or the grid connection on its own is impermissible project splitting in accordance with established European case law. The developer being mindful of the O'Grianna rule, the EIAR in this case contains a description of the proposed design and route of the grid connection and an analysis of its environmental impacts cumulatively with the windfarm. The Inspector included the grid connection in his EIA.
498. In O'Grianna and subsequent cases (notably Alen-Buckley and Ors v An Bord Pleanála and Ors [2017] IEHC 541, and North Kerry Wind Turbine Awareness Group v An Bord Pleanála [2017] IEHC 126.), it has been held that the O'Grianna rule does not mean that a developer must apply for planning permission for both the windfarm and a grid connection within the same application. It means only that an environmental impact assessment of one of the components without the other does not comply with the Directive.
499. Three separate issues arise on the Action Group's case relating to the grid connection. The first of these is the only ground on which I have concluded that the Action Group's case must succeed, and it is fundamental to the result of these proceedings.
500. Firstly, it is said that the published notice was defective in that it did not refer to the facts that the EIAR extended to the grid connection or identify its location by reference to townlands or at all. (paras. E10, E11 and E12).
501. The Action Group claim that the effect of this is that the public notification requirement in Article 6.2 of the EIA Directive was not complied with. For the reasons stated below, I agree with this submission. (See paragraphs 504 et seq.)
502. The second ground in relation to grid connection (paras. E7, E8, E9, E12, E13 and E31) arises from the fact that the design and route of the grid connection was not final and definitive and there was submitted only an indicative connection route to a substation at Irishtown, near Mullingar, 26 kilometres from the windfarm site. It is claimed it is a fundamental component of the information to be provided as part of the obligations under the EIA Directive and under Schedule 6 of the Planning and Development Regulations, 2001, that information on the site, the design and size of the proposed development be submitted, to enable an assessment of the effects of the development on the environment and that in the absence of such definitive information a valid assessment of the environmental impacts cannot be carried out. It is claimed that the respondent failed to consider or address observations made to it that a comprehensive assessment of the impacts of the project and, in particular, the works in respect of the grid connection, could not be undertaken in light of the absence of a definitive design. I have rejected those grounds for the reasons stated at paragraphs 601 onwards.
503. The grounds continue (E31) that the obligation to perform appropriate assessment required by the Habitats Directive requires that the totality of the development, including the grid connection, must be assessed and a determination made that it will have no impact as a matter of scientific certainty on the relevant European sites, and that this cannot have been done in circumstances where there was no concluded design and only an indicative grid connection route.
504. Thirdly, it is said that the conditions incorporating mitigation measures referable to the grid connection relate to third party lands which cannot be the subject of conditions pursuant to s. 34(4) of the Act. I have rejected those grounds for the reasons stated at paragraphs 617 onwards.
505. In O Grianna v. An Bord Pleanála & ors [2014] IEHC 632, Peart J. decided that the second phase of the windfarm development, in that case the connection to the national grid, is an integral part of the overall development of which the construction of the turbines is the first part. The wind turbine development on its own would serve no function if it cannot be connected to the national grid and, therefore, the connection to the national grid is fundamental to the project. Peart J. concluded that the windfarm and its connection, in due course, to the national grid is one project, neither being independent of the other. In his judgment ([2015] IEHC 248), on an application concerning remittal of the matter to the Board, Peart J. summarised his own judgment in the first case as follows:-
"The court has determined that the construction of the wind turbines themselves and the connection to the national grid is a single project, and not two separate projects, and that before granting planning consent for the former it was necessary that the cumulative effects of the combined or single project ought to have been carried out. In circumstances where that has not happened I concluded that the decision should be quashed."
506. Having regard to that decision, the EIAR submitted by the developer in this case incorporated an examination of the environmental impacts of the windfarm and related works at the turbine site and of the proposed grid connection. The drawings submitted with the application do not, in themselves, illustrate the grid connection route, but it is described in the EIAR. In the EIAR, a description is given in the Non-Technical Summary of the townlands in which the entire project is to be located. It describes firstly the works associated with the windfarm itself, including (a) turbines and associated foundation and hard standing areas, (b) one on site electrical substation, (c) one construction compound, (d) underground and electrical and communications cabling connecting the turbines to the on-site substation, (e) new site access roads, upgrading of existing access roads and associated drainage. Those works are all to be located within five named townlands, namely Coole, Monktown, Camagh, Doon and Clonsura.
Secondly the EIAR refers to the proposed borrow pit, (f), which will be located in the townland of Mullagh, (g) the construction of a new link road between two regional roads (R395 and R396) to facilitate turbine delivery, and (i) associated site development works, (including tree felling).
Thirdly, it refers at (h) to junction improvement works at two separate locations to facilitate turbine delivery. One is in the townland of Boherquill, which is the widening of a junction between two local roads. The second is in the townland of Joanstown, which entails improvement between a local road and the national road, the N4.
507. All of those works, (a) - (i) and their location were referred to in the published notices.
508. The EIAR then refers to the grid connection route and identifies by name 23 townlands. These include two of the townlands relevant to the windfarm itself, namely Monktown and Coole, and 21 further townlands between the turbine site and the townland of Irishtown, 26 kilometres further south and close to the town of Mullingar.
509. Neither the grid connection, nor the townlands in which it is proposed, are referred to in the published notices.
510. The EIAR makes it clear that works associated with the proposed grid connection are "included for assessment in this EIS/EIAR but do not form part of this planning permission application". The site location maps included in the EIAR, of which there are many, identify the site locations for the planning permission sought being the turbine site itself, the proposed borrow pit, the proposed link road between two regional roads and the location of junction improvement works at Boherquill and Joanstown. Although not the subject of the planning application, a map is included showing also the indicative or "proposed" grid connection route.
511. The report describes the grid connection route, at para. 2.5.1.2 as follows:-
"The proposed grid connection route is via an underground cable running from the proposed on-site substation to the existing 110 KV Mullingar substation, located in the townland of Irishtown. This has been assessed as part of this EIS/EIAR but will form part of a separate consent process. (emphasis added)
The proposed grid connection route, the majority which is located within the public road corridor [emphasis added], measures approximately 25.9 kilometres and passes the settlement of Coole and Multyfarnham. The townlands through which the proposed cable route traverses are listed in table 1 of the report [quoted earlier]."
512. Throughout the report, under each heading, references are made, not only to the windfarm site and the associated works, but also to the grid connection. For example, in para. 2.5.2, in the description of the project, where reference was made to the "land use", a subsection is devoted to the grid connection which states "Land use along the proposed grid connection route comprises mainly agriculture with some areas of peat harvesting and forestry".
513. In the description of the planning history of the site, a section is devoted to planning applications in the vicinity of the proposed grid connection route (2.6.3). The majority of applications along the cable route relate to the provision and/or alteration of one-off rural housing and agriculture related structures.
514. In the section of the report considering alternatives, again, there is a description of the proposed grid connection route and an explanation of alternative cable route options which were considered as part of the project design.
515. The report continues by explaining that "as part of the initial route selection process, other grid connection routes were considered as potential alternatives, but these were deemed less favourable". The preferred route was chosen to minimise cable lengths and the potential for disruption to the town of Castlepollard, and to utilise a route which had fewer water crossings thereby minimising the potential for additional costs and minimising potential environmental effects.
516. It is stated that the chosen or preferred route avoids large urban centres and uses the shortest length of single carriageway roads to minimise road closures and the potential impacts on local residents and traffic. It is considered that roadworks associated with the installation of the cable would be more easily accommodated as far as possible along the M4 corridor.
517. The EIAR states that precise location of a cable within the road curtilage will be subject to ESB specifications and agreement with Westmeath County Council.
518. In s.3.8 of the report there are detailed descriptions of the form of cable trenching which would be installed for the grid connection. It describes the watercourse crossings along the intended route. The route will traverse one Irish Rail level crossing which will require the agreement of CIE.
519. No instream works are required at any watercourse crossing. Detailed drawings are included which identify the manner of the trench installations at watercourse crossings over the course of the route. A table is contained in section 3 of the report identifying the culverts and water crossing methodology for each of the sixteen water crossings associated with the grid connection route.
520. Aspects of the impact of the grid connection are considered under each of the headings in the EIAR notably chapters 4 (assessment of impacts on human beings population and human health), chapter 5 (flora and fauna), chapter 6 (birds), although the description of the potential impact of the grid connection on birds is limited, chapter 7 (land, soils and geology) including a section dedicated to the effect of the grid connection cable on peat stability, chapter 8 ( hydrology and hydrogeology), chapter 9, (air and climate), chapter 10 (noise and vibration), although again the discussion under this chapter of the grid connection is limited, chapter 11 (landscape and visual) where there was no requirement for any extensive discussion because the grid connection will be underground.
521. In chapter 12 which concerns archaeology and cultural heritage the surveys extend to the grid connection route and account is taken of national monuments, recorded archaeological monuments or potential new archaeological sites.
522. In chapter 13 which relates to "material assets", the discussion of the implications of the project for traffic and transport is discussed and the grid connection is considered. A description is provided of the manner in which grid connections will be laid including the limited implications for traffic.
523. Recital 16 to the EIA Directive states:-
"Effective public participation in the taking of decisions enables the public to express, and the decision maker to take account of, opinions and concerns which may be relevant to those decisions, thereby increasing the accountability and transparency of the decision-making process and contributing to public awareness of environmental issues and support for the decisions taken." (Emphasis added)
524. Article 1.2 (g) defines environmental impact assessment as a process consisting of five separate steps, which include "(ii) carrying out of consultations referred to in Article 6, and where relevant Article 7"
525. Article 6 of the Directive relates to notification to and consultation with statutory consultees and other authorities, and public participation.
526. Article 6.2 provides as follows:
"In order to ensure the effective participation of the public concerned in the decision-making procedures, the public shall be informed electronically and by public notices or by other appropriate means, of the following matters early in the environmental decision-making procedures referred to in Article 2(2) and, at the latest, as soon as information can reasonably be provided:
(a) the request for development consent;
(b) the fact that the project is subject to an environmental impact assessment procedure and, where relevant, the fact that Article 7 applies; (emphasis added)
(c) details of the competent authorities responsible for taking the decision,
(d) the nature of possible decisions;
(e) an indication of the availability of the information gathered;
(f) an indication of the times and places at which, and the means by which, the relevant information will be made available;
(g) details of the arrangements for public participation made pursuant to paragraph 5 of this Article."
527. When O'Grianna is applied to this Article, the term "project" in paragraph (b) above can only mean the entire project, including the grid connection.
528. Article 6.3 identifies further information which must be made available to the public concerned.
529. Article 6.4 provides as follows:
The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken."
530. Article 2.2 provides as follows:
"The Environmental Impact Assessment may be integrated into the existing procedures for development consent to projects in the member states, or, failing this into other procedures or into procedures to be established to comply with the aims of this Directive."
531. The State elected to integrate environmental impact assessment into the existing procedures for planning permission, by s.171A and 172 of the Planning and Development Act, 2000, as amended and Part 10 of the Planning and Development Regulations, 2001 as amended. Therefore the procedures under the Act and the Regulations are a unitary procedure serving the dual purposes of regulating planning permissions under the Act and governing environmental impact assessment for the purpose of the EIA Directive.
532. Section 171A transposes the definition of environmental impact assessment as a process consisting of steps including "the carrying out of consultations in accordance with this Act and regulations made thereunder".
533. Article 17 of the Regulations of 2001 provides that an applicant for a planning permission must give notice of intention to make the application in a newspaper notice, published in accordance with Article 18 and by the erection of a site notice.
534. The notice to be published is required by Article 18(1) to state inter alia the following.
(a) the name of the applicant,
(b) the location, townland or postal address of the land or structure to which the application relates (as may be appropriate), and full details of the nature and extent of the development.
535. Article 98 of the Regulations stipulates as follows:
"In addition to the requirements of Article 18, where a planning application is to be accompanied by an EIS, a notice under Article 17.1.8 (being the newspaper and site notice) shall state -
(a) That an EIS will be submitted to the planning authority with the application, and
(b) That the EIS will be available for inspection or purchase at a fee not exceeding the reasonable cost of making a copy during office hours at the offices of the relevant planning authority."
536. The site notice and newspaper notice published in this case stated that the developer intends to apply for a ten year planning permission for a wind farm development with a 30 year operational life and all associated works at this site "in the townlands of Coole, Monktown, Camagh, Doon, Clonsurra, Mullagh, Boherquill, and Joanstown, County Westmeath". The first five of those are the windfarm turbine site, the associated works and the new link road between the R395 and the R396. The sixth, Mullagh, is the location of the borrow pit. The seventh, Boherquill is the location of junction improvement between two local roads. The eighth, Joanstown is the location of an improvement between a local road and the N4.
537. The notice then describes the development as follows
"The development will consist of
(a) Up to 13 wind turbines with a tip height of up to 175 metres and all associated foundations and outstanding areas.
(b) One on site electrical substation.
(c) One temporary construction compound.
(d) All associated underground electrical and communications cabling connecting the turbines to the proposed on site substation.
(e) Provision of new site access roads, upgrading of existing access tracks and associated drainage.
(f) Excavation of one borrow pit.
(g) Construction of a link road between the R395 and R396 regional roads to facilitate turbine delivery.
(h) Junction improvement work to facilitate turbine delivery, including providing hard surfacing at the N4 in the vicinity of its junction with the L1927 local road in the townland of Joanstown and the widening of the L1927 and L5828 junction in the townland of Bherquill and
(i) All associated site development works (including tree felling)
An environmental impact assessment report (EIAR)/Environmental Impact Statement (EIS) and a Natura Impact Statement (NIS) have been prepared in respect of the proposed development. (Emphasis added). The planning application including environmental impact assessment report (EIAR)/Environmental Impact Statement (EIS) and Natura Impact Statement (NIS) may be inspected, or purchased at a fee not exceeding the reasonable cost of making a copy, at the offices of the planning authority at either [Mullingar Municipal District Office or Athlone Municipal District Office]."
538. The developer did not apply for planning permission for the grid connection. Therefore, as far as concerns the application for planning permission for the windfarm and associated works, these notices complied with the publication obligation in Arts 17 and 18, firstly by giving details of the project for which the developer intended to apply for planning consent, and secondly, by stating that an EIS and an NIA had been prepared in respect of the development and were available for inspection. That "development" comprised items (a) to (i) described above, and the notice accurately describes the townlands in which all of those works will be undertaken, including the works outside the main windfarm site, namely the borrow pit, the link road, and the improvement works at two junctions.
539. In stating that the developer intends to apply for permission for the development as described above the notice is correct. In stating that an EIAR and an NIS have been prepared in respect of the development, the notice is only partially correct, because those Reports contain assessment not only of the development as described in detail in the notice but also of the grid connection which is not referred to. Therefore, the notice does not inform a reader that the environmental impacts of the grid connection will be assessed.
540. This is not a mere flaw in the level of detail contained in the public notice. There has in previous cases been controversy and debate as to precisely what level of description of works is required in such a public notice. In this case care was taken in the public notice to provide a detailed description of the windfarm project, its main location and the several other locations of road and other works, naming 8 townlands. It contains no reference to the grid connection spanning 26 kilometres and 21 townlands. No reader of the notice would have any reason to believe that environmental impact assessment was being performed in respect of anything more than the development works described in detail in the notice, and to be undertaken within the townlands named in the notice. On the contrary, the notice states that an EIA and a NIA has been prepared "in respect of the proposed development", a phrase which to any reader can only mean the development described above in that notice.
541. If the notice had been more general and not given such detail of the proposed works and identified the several separate locations for the turbine site, the borrow pit, the link road and the junction improvement works, an argument may have arisen as to the adequacy of the notice generally. But since it contained that level of detail as to the different components of the works and their locations in eight townlands, the omission of any reference to the grid connection and location of its proposed route through twenty one townlands is a stark omission in the context of EIA.
542. The Board and the developer submit that because no planning permission was sought for the grid connection, the publication obligation was limited to the wind farm and related works and did not extend to the grid connection. That is correct only as far as concerns the application for planning permission. However, as far as concerns compliance with the obligation to perform the complete process of environmental impact assessment, including the step required by Article 6.2 of the Directive of informing the public of the project being assessed, which Peart J. held in O'Grianna is the single project comprising both the windfarm and the grid connection, it is incorrect.
543. In O'Grianna, after the finding that the decision of the Board should be quashed, the matter came back before Peart J. who decided that the appropriate course was to remit the matter to the Board. [2015 IEHC 248]. Following remittal, the Board conducted its assessment and decided to grant the permission.
544. When the matter was remitted to the Board it issued notice to the developer pursuant to s.132 of the Act requesting that it furnish certain further information. By this notice the Board required that the developer submit a revised environmental impact statement to incorporate further information to enable the Board to conduct an EIA in accordance with the requirements of the Directive in relation to the overall proposal including the grid connection.
545. The developer issued a revised public notice which referred to the relocation of one of the turbines and to the provision "of approximately 11.5 kilometres of 38 kv underground cabling and associated underground communication cables between the proposed on site 38 kv substation and the national electricity grid at the permitted Coomataggart 110 kv substation at Grousemont, Kilgarvan, County Kerry" (see judgment of McGovern J. in "O'Grianna 2", [2017] IEHC 7). Therefore, a revised public notice was given in that case which referred expressly to the grid connection works.
546. The judgment in O'Grianna 2 contains no consideration of whether the revised public notice of the grid connection would have passed the test in ESB v Gormley which I consider later, I assume because no submission on that point was made. The critical point is that the revised public notice referred to the grid connection and at least the distance it covered and the location of the destination substation.
547. The applicants in O'Grianna 2 submitted that the revised notice, by incorporating a changed location for one of the turbines and reference to the grid connection, went beyond its scope and purported to alter the terms of the planning application which been remitted to the Board. This was rejected by the court (McGovern J.) because the Board's decision made it clear that the permission granted should not be construed as any form of consent for the proposed grid connection, and of course the developer had not applied for planning permission for the grid connection.
548. The developer and the Board submitted that the Board had now conducted an effective EIA for the wind farm project in compliance with the EIA Directive and with the remittal judgment of Peart J, namely an assessment of the integrated project including the grid connection.
549. McGovern J. concluded that there was no basis for the applicant's submission that the public, including the applicants themselves in that case, were not given adequate notice of the changes to the project being assessed. He observed that not only had the applicants been given notice, but they had made submissions on the changes.
550. An important feature of O'Grianna 2 is that the revised notice published by the developer, found by the court to be compliant, contained express reference to the grid connection, and at least its destination substation 11.5 kilometres away, the grid connection being part of the integrated project being assessed for EIA. This clearly informed the decision of McGovern J. that the requirement to give notice to the public had been met.
551. Alen-Buckley v An Bord Pleanála & Ors. [2017] IEHC 541 also concerned an application for planning permission for a windfarm development. The application had been refused by Waterford County Council and the developer appealed to the Board. In his report the Inspector recommended refusal of the application on the sole basis that the development would result in excessive noise being generated at dwellings in the vicinity. He also expressed his view that in light of the decision in O'Gríanna v An Bord Pleanála the EIS was deficient and required further detail relating to the proposed grid connection for the development. He was not recommending refusal on that ground alone but he indicated that it would be appropriate to revert to the applicant for further information.
552. After consideration of the Inspector's recommendation the Board issued to the developer a request for further information pursuant to s.132 of the Act. In that request it sought a revised EIS, which would contain further details including information relating to shadow flicker, and relating to the proposed grid connection. The information requested was furnished to the Board and the Board then decided to do the following:
(i) to notify all parties to the appeal of the receipt of the additional information;
(ii) require the developer to publish notices informing the public that the Board had received this further information and invite submissions re same; and
(iii) to refer the matter back to the Inspector to prepare an addendum report.
553. The judgment records that the further information included details of the grid connection and that the Board directed the developer to publish notices informing the public that the Board had received that further information and that submissions were invited. Unlike in O'Grianna, the judgment does not record if that revised notice itself referred expressly to the grid connection. However, paragraph 4 of the judgment makes it clear that the further information, to be referenced in a further public notice, included details of the proposed grid connection.
554. Extensive submissions and observations were received by the Board after publication of the updated notice.
555. The Inspector prepared a revised report in which he stated that he had incorrectly interpretated the Ministerial guidelines relating to noise. He now concluded that the noise at the proposed development would not exceed the threshold allowed in the relevant guidelines. He also conducted an environmental impact assessment and a screening for appropriate assessment encompassing the proposed lands, the haul routes and the grid connection. He concluded that the proposed development was not likely to have significant effects on any European sites and he recommended that planning permission be granted subject to a number of conditions.
556. In relation to EIA the Board decided that the development would be acceptable with certain mitigation measures and other conditions and on 22 November 2016 it decided to grant the planning permission.
557. An application was then made for an order of certiorari of the grant of planning permission.
558. One of the grounds relied on was a complaint that the site notice erected did not contain sufficient information relating to the grid connection and haul route works which the applicants in that case contended were now being included in the planning application. It was said that the failure to specify the location and extent of the development contravened principles set out in Gormley v ESB [1985] IR 129 (discussed below), the Planning & Development Regulations 2001 and the Aarhus Convention in relation to public participation in the planning process. The applicants also claimed that resulting from the deficient site notice none of the parties whose lands were affected by the two possible grid connection routes made any submissions to the Board in relation to the application for planning permission. Nor had those parties given any consent for grid connection work to be carried out on their land.
559. The debate in that case turned on a submission by the applicants that after the s.132 request was made, and further information was received by the Board the scope of the application for planning permission had been altered. The applicants submitted that the Board direction had the effect that the permission granted by the Board was now extended to include the grid connection works, which was clearly incorrect having regard to the terms of the Board's decision.
560. The applicants relied on, inter alia, the fact that condition 10 of the Board's direction, which related to a transport management plan, included a requirement that a condition survey of the roads and bridges along the haul routes and grid connection route would be carried out at the developer's expense.
561. Haughton J observed that the first group of issues in the case related to the extent of planning permission granted. That group of issues included the claim that the site notice erected did not contain sufficient information relating to the grid connection and haul route works which the applicants contended were now included in the planning application, contravening the principles set out in Gormley. He decided that those issues "fell away" because it was clear from its terms that the planning permission granted did not extend to the grid connection works. He said that the Inspector was not assessing the grid connection for planning permission. In performing his EIS the Inspector "felt obligated by the O'Gríanna" to seek further information in relation to the grid connection works so that he could carry out a comprehensive and legally valid environmental impact assessment of the development including the cumulative effects with the grid connection. He found that the Inspector had neither assessed or recommended for planning permission the grid connection or haul route works.
562. On this issue Haughton J concluded as follows:
"Following from this the issues relating to the alleged grant of planning permission for the grid connection and haul route works fall away. Thus it cannot be said that the site notice was defective for not including details of the grid connection/haul route works, and no public notification issue arises because these were not included in the planning application."
563. The word 'thus' is important, because the following conclusion shows that the public notification ground was rejected because it fell away once the court had rejected the submission that the planning permission had somehow expanded itself to include the grid connection (A submission to that effect was made in these proceedings but withdrawn). Haughton J. was not invited to and did not determine separately from the submission as to the 'expansion' of the planning permission to the grid connection, the validity of the public notice for the purpose of Article 6.2 of the EIA Directive.
564. In each of O'Grianna and Alen Buckley revised public notices were issued. Neither of those cases are authority for a proposition that a notice, whether the site notice or a published newspaper notice, which does not describe the project being assessed for environmental impact assessment, namely the single project of the windfarm and the grid connection, complies with the public notification requirement of the Directive. As the Inspector made clear in Alen-Buckley, the grid connection was outside the planning permission but inside the scope of the EIA.
565. In ESB v Gormley [1985] IR 129, the court was concerned with the validity of a grant of planning permission for the erection of a transmission line between two locations in County Wexford.
566. The notice of intention to apply for planning permission which was published in the national newspaper stated that the applicant, ESB, intended to apply to the planning authority for permission to erect a relevant portion of the transmission line "between the townlands at Fortchester Lower and Ballykilty Upper near Coolgreany, County Wexford".
567. Townlands between these locations were not named in the notice and the court found that the notice did not comply with the regulations made pursuant to the Local Government (Planning and Development) Act, 1963.
568. Finlay CJ. had the following to say:-
"Only two townlands are mentioned in an advertisement of intention to apply for permission to lay a transmission line for a distance of over 40 miles across the County of Wexford. Those two townlands merely indicate the area in which the transmission line commences in County Wexford and the area in which it leaves County Wexford. It does not seem to me that the form of the advertisement would even notify an owner or occupier of lands that the townland in which he resided might be affected, let alone inform him that his actual property might be affected, except insofar as may have applied to the limited number of persons living in either of the two nominated townlands. Evidence was given at the hearing in the High Court that other planning authorities in relation to applications for erection of electricity lands required at least a list of the townlands through which they would be erected. It does not seem to me that there can be any conceivable reason why such a requirement could not have been made and complied with in this case and, if it had, it would at least have given a reasonable indication of the probable route to be taken by the transmission line. I am therefore satisfied that the advertisement pursuant to which this application for planning permission was made did not comply with the permission regulations made pursuant to s. 25 of the Act of 1963 and that therefore the planning authority had no power or jurisdiction to grant planning permission in respect of that application."
569. In the course of his judgment the learned Chief Justice approved an observation made by Griffin J. in the earlier case of Crodaun Homes Limited v Kildare County Council [1983] 1 ILRM 1 where he stated the following:
"The primary object of the publication in a newspaper is to ensure that adequate notice is given to enable those members of the public who are interested in the environment, or who may be affected by the proposed development, to ascertain whether they may have reason to object to the proposed development. In my view, to satisfy the requirement of stating 'the location of the land', both the letter and the spirit of the regulations require that in the case of land, and in particular land which is not in an urban area, the site on which it is proposed that the development should take place must be correctly and accurately so described in relation to the district in which the land is situate - for example by the estate of which it forms part, or the townland, or the neighbouring village - as to be readily and reasonably identifiable."
570. Gormley and Crodaun related to the validity of notices for the purpose only of planning applications. In this case the issue raised by the Action Group is that the requirement of public participation, which is a necessary part of the unified process by which environmental impact assessment is performed as a precondition to a valid development consent, has not been complied with. Nonetheless the observations of Griffin J. and Finlay CJ. are apposite in that they emphasise that compliance with the requirement of giving notice requires a description of the relevant townlands.
571. In this case the newspaper notices identified the five townlands in which the windfarm with the turbines, access roads, substation and construction compound would be constructed, the separate townlands for the proposed borrow pit, and for a new link road, and the two townlands relevant to junction improvement works. Having given all of that detail, the notice then contains no reference to the twenty one townlands identified as the proposed route of the grid connection route which was being assessed for environmental impacts.
572. A submission was made by the Board and the developer that in circumstances where the grid connection route described in the environmental impact assessment report was a suggested route and finality had not yet been reached in relation to that route or the grid connection location itself, only confusion would follow from any reference to the townlands through which the grid connection route would be laid. That may well be the case, but that is a by-product of the decision to subject the entire project including the grid connection, as must be done since O'Grianna, to EIA before the details of that route have been finalised. It does not cure the fact that the public notice requirement, contained in the Regulations of 2001 and which are utilised for the purposes both of planning permission under the Act of 2000, and the performance of environmental impact assessment as required by the Directive, were not complied with.
573. In Section 7.5.4 the Inspector refers to the Aarhus Convention insofar as it pertains to the involvement of the public and environmental matters. He refers then to the "public" consultation process conducted by the applicant as documented in 2.8.6 and 2.8.7 of the EIAR.
574. S.2 of the EIAR includes at s. 2.8.6 details of "community consultation". Extensive community consultation took place in relation to the proposal for the windfarm in advance of the application by the developer. This included the appointment of a community liaison officer, the delivery of leaflets and information to local communities, local businesses and community groups and the holding of a public consultation event in the village of Coole on 15 February 2017. This event was advertised by the display of public posters in the local post office, shop, public house and newspaper notices including an advertisement in the Westmeath Examiner. Locally elected representatives were invited to the event and it was attended by approximately 70 people. Details were provided in the EIAR of the information which was presented in the village hall at Coole. There was placed on display illustrative panels demonstrating the layout and visual impressions of the turbines and other such information. Reference was made in the course of this to the layout and the potential grid connection routes.
575. However, the advertisement and notices of this meeting again referred to the "wind energy proposal centred around the townlands of Clonsura, Doon and Camagh, in the Coole area."
576. It was not contended on behalf of the developer that the publication of those notices or the holding of other local consultations satisfied the requirements of the Regulations made under the Act. However it is very clear that this measure of public consultation, however collaborative and informative it may have been, was performed in the area of Coole and the immediate townlands of the windfarm and did not extend to the residents of any of the townlands between the windfarm site and the substation 26 kilometres away.
577. As permitted by Article 2.2 of the Directive, Articles 17 - 20 and Article 98 of the Regulations were adopted, and amended, for the purpose not only of the national laws for planning permission but also for the purpose of complying with the requirement of the Directive to perform environmental impact assessment before granting permission, that assessment being a process which includes the requirement to give notice to the public of the fact that the project, which since O'Grianna must include the grid connection, is subject to an environmental impact assessment procedure. It is therefore a unified procedure for a dual purpose. No person, however interested, reading the notice published in this case would have any reason to know or suspect that the development the subject matter of the planning application and the development the subject matter of the environmental impact assessment, was anything other than the development described in detail in the notice.
578. On the contrary, any such reader would be justified in assuming that the environmental impact assessment report and the Natura Impact statement, both of which are referenced in the published notice, refer only to the project the details and the location of which are described in the notice, and not the single project, including the grid connection spanning a further 21 townlands over 26 kilometres.
579. The Action Group submit that such a notice should not only describe the route of the proposed grid connection, but also the voltage of the transmission lines and the nature of the structures within which the lines are to be contained and any other structures along the route, so that the width and depth of the trench for example would be identified. That submission is going too far. However, I agree with the Action Group that because the notice did not refer at all to the grid connection or identify the townlands which the route would traverse the consequence is that no public notice was given of the environmental impact assessment as required by the Directive.
580. The Board and the developer rely on the judgments in O'Grianna and Alen Buckley and say that because the planning application did not itself seek consent for the grid connection and because no consent was given by the Board for the grid connection, as confirmed by condition no. 8 of the Board Order, there was no requirement on the developer to notify the public and/or obtain land owner consent for the indicative grid connection route. That very submission was made in O'Grianna 1 (paragraph 31) and rejected by Peart J. In O'Grianna the Board submitted that "for the objectors' case to have any merit it must be on the basis that the development and the national grid connection constitute the one project and thus, that such a project had been granted development consent in defiance of the EIA Directive because such has arisen prior to a complete EIA". It was clear in that case, and in the present case, that the Board had not given development consent for the grid connection and Peart J. rejected that submission by the Board.
581. Prior public notification is a requirement for a valid environmental impact assessment. The fundamental principle of O'Grianna is that the windfarm and the grid connection must be assessed together as one project. In this case the absence of any public notification of the grid connection element had the effect that there was no valid process of environmental impact assessment of the integrated project, but of part only. The fact that the developer had not applied for consent for the grid connection does not, as Peart J. found, warrant deviation from the requirements of the EIA Directive, including the requirement to give public notice of the environmental impact assessment of what O'Grianna says is one integrated project.
582. There is no obligation on a developer to seek planning permission for the grid connection at the same time as or in the same application as the application for the windfarm site itself. Separate and successive applications can be made for these elements of the project and there are usually good reasons to do so. However, if any environmental impact assessment is to be valid and compliant with the Directive it is must be an assessment of the entire of the project as one, per O'Grianna.
583. The notice party submits that a person reading the notice as published would have been in no doubt that the developer was seeking planning permission only for a thirteen turbine windfarm. That is correct because the grid connection is not mentioned in the notice. If such a reader followed up by inspecting the planning application and supporting documents, it would become clear that planning permission is sought only for the windfarm and ancillary works, and not for the grid connection. However, it would also be clear that, in observance of O'Grianna, the environmental impact assessment extends to the grid connection and such a person, having inspected the application, would then have the opportunity to make observations for the purpose of that assessment. But even a member of the public who has an interest in such matters generally and takes the time to read the notice, would have no reason to be aware from the notice that there was being assessed for the EIA Directive any works outside the eight named townlands in which would be located the windfarm, the borrow pit, the new link road and the two junction accommodation works. Therefore, no person, however interested he/she may be in such notices, would have reason to inspect the documents submitted for the dual purpose of a planning application and an Environmental Impact Assessment. I must therefore reject the proposition that the notice published in this case was sufficient to meet the Article 6 requirement to give notice to the public of the performance of an environmental impact assessment which, as it must do, included assessment of the grid connection.
584. The developer submits that it is clear from the terms of Article 18 of the Regulations that there is no requirement for a public notice to describe a grid connection which did not form part of the application. That is correct insofar as it concerns the application for planning permission. But insofar as the State elected to utilise the provisions of the Planning and Development Act 2000 and the Regulations of 2001 to process environmental impact assessment, a notice which describes the location of only part of the project, omitting twenty one townlands spanning 26 kilometres clearly does not satisfy the requirement.
585. In para. 7.5.2 of his Report the Inspector discusses the concept of project splitting. In relation to the grid connection he notes at s.7.5.2.2 that the application for the grid connection is not part of the application for planning permission. He continues:-
"A grid connection option has been put forward with the preferred route to be based on ESB/EirGrid requirements. A full consideration and assessment of the grid connection is provided for in the EIAR and in my assessment above and I am satisfied that the detail provided is sufficient to enable the Board to assess the environmental impacts arising. This approach follows the High Court judgment O'Grianna & Ors. v An Bord Pleanála [2015] IEHC 248"
586. In O'Grianna Peart J. stated:-
"It seems to me that the fact that the developer is at the mercy of ESB Networks as far the details of the plan for that connection to the grid is concerned, cannot absolve the developer from compliance with the Directive in every respect."
587. I emphasise the words "in every respect" above, because compliance with the Directive includes compliance with the public notification requirement in Article 6.2 and such public notification is as important for environmental impact assessment as it is for planning permission.
588. In so far as the Inspector records that a full consideration and assessment of the grid connection is provided "in the EIAR and in my assessment above", the Inspector is correct only in relation to the content of the EIAR submitted by the developer, as prescribed by Article 3.1 of the Directive and Section 172(1b) of the Act and in relation to his own assessment. But, as Peart J. put it, there must be compliance with the Directive "in every respect". This includes following the process consisting of steps which include public notification. Those steps were not taken and the Inspector and the Board erred in the conclusion that a valid EIA had been made.
589. A connection to the national grid for a windfarm development is the second phase of the development and is an integral part of the development of which the construction of turbines and ancillary works is the first part. An environmental impact assessment of part only of the development does not comply with the Directive.
590. Environmental impact assessment, as defined in the Directive, is a process. It comprises not only the preparation and submission of an EIAR and examination of the EIAR by the authority, but also consultations in accordance with the Act and Regulations which includes notifications to statutory consultees and notice to the public.
591. Article 2.2 of the Directive provides that the environmental impact assessment may be integrated into the existing procedures for development consent to projects in member states. In this State the process for performing environmental impact assessment is incorporated into the procedures for planning permission, by Part 10 of the Planning and Development Act 2000, as amended and the Planning and Development Regulations 2001, as amended.
592. A notice which describes the project, as in this case, where detail is provided of the windfarm and ancillary works, including works at four locations separate from the main windfarm site (the borrow pit, the new link road and two junction improvement works) but which makes no reference to the grid connection or its location or the intended route thereof is notice to the public only of that part of the integrated project, as Peart J. put it, which is the windfarm turbines and ancillary works.
593. Reference in the published notice in this case to the fact of an environmental impact assessment being performed, although required by Article 98 of the Regulations, does not inform a reader that more is being assessed than the windfarm site itself.
594. Only a person who is familiar with the O'Grianna rule against project splitting would have any reason to know from such a notice that more is required to be assessed, and is in fact being assessed, than that part of the project which is described in the notice.
595. If a reader of the notice sought access to the file and documents submitted with the application then such a reader would observe the scale of the project being assessed. But a member of the public not being familiar with O'Grianna would have no reason to believe that more was being assessed than the windfarm site itself.
596. The effect of all of this is that the assessment not having been publicly notified, is not compliant with the Directive.
597. The requirement to give public notice of the assessment is not a mere formality, or an academic or cosmetic exercise in democracy. It goes to the very validity of the process. There are good reasons for the requirement. The decision maker performing an EIA is required by the Directive to be informed not only by his own expertise, by the expertise of the developer's professional experts, and the expertise and submissions of statutory consultees, but also to have the benefit of observations by members of the public. No matter how professional, expert or comprehensive are the reports and other information submitted, or how skilled the authors and readers of such reports are, if the assessing authority is deprived of the possibility of submissions by the public its assessment is made without the benefit of contributions by persons having direct knowledge of the location of the project and likely to be most directly affected. This is why public consultation is at the heart of the Directive. Therefore, an assessment process of which the public have not been notified, does not comply with the Directive.
598. I have considered whether it could be said that this failure might have the effect of vitiating only the assessment of the grid connection element of the project, and therefore not the EIA of and the planning permission for the windfarm itself. Such a finding would amount to a classic exercise in "project splitting", which was at the heart of the O'Grianna judgment where Peart J. found that EIA of the windfarm without the grid connection was fatally flawed. That is why in O'Grianna, when the matter was remitted to the Board, a new public notice was published which referred to the grid connection, thereby enabling the EIA to be compliant in every respect with the Directive.
599. For these reasons I conclude that the grounds stated by the Action Group in paras. E10, 11 and 12 (and E13 insofar as it cites the absence of public notice) have been made out. Therefore, the reliefs sought in paras. D1 and D2 must be granted, and the decision of the Board quashed.
600. For completeness, I have considered below the other submissions of the Action Group relating to the grid connection.
601. The Action Group claim that because the design of the grid connection and its route have not been definitely concluded and where the connection is an integral part of the development a compliant assessment of the environmental impacts of the project as a whole for the purposes of the Directive cannot be carried out (paragraph E7).
602. They claim (paragraph E8) that notwithstanding that the connection route proposed is indicative only, the Board had concluded that "the indictive route may prejudice major road realignment proposals. No definitive route which would be consistent with the scheme or which could be properly assessed for the purposes of the environmental impact assessment has been concluded and no assessment therefore that complies with the Directive has been carried out".
603. The Action Group claim (paragraph E9) that the Board could not have concluded or completed an environmental impact assessment in respect of the grid connection route and could not have made the conclusions which it did in respect of its impacts on people, in respect of noise and human health in circumstances where the precise route of the gird connection was not defined or capable of being defined to a level of detail that would comply with the requirements for assessment under the Directive.
604. The Action Group submits that the Board failed to consider submissions made to it that a comprehensive impact of the assessments of the project including the grid connection could not have been undertaken in the absence of a comprehensive design of the grid connection itself.
605. The Inspector records (at pg. 41) that the application before him provides full details of the proposed grid connection within the EIAR "to enable the Board to conduct a complete comprehensive EIA of the project." In s. 7.3.3.34 of his Report the Inspector states his conclusion as regards the grid connection in the context of environmental impact assessment where he states the following:-
"The applicant states that the EIAR addresses the cable route for the grid connection in full following an initial assessment of options. It is proposed to connect to the national grid by an underground cable of approximately 26 kilometres length from a substation on the windfarm site to the existing 110 kV substation at Irishtown on the Northwest side of Mullingar. The underground grid connection would be predominantly located along the public hard surface roadway within shallow trenches. The grid connection may need to be laid in the three field aeras adjacent to sections of road according to the planning authority, while the applicant clarifies that the preferred scenario for the laying of the grid connection, subject to further consent processes, would be solely via cabling along the public road. The roads design office of the planning authority and TII have also advised that the grid connection route may ultimately need to be realigned as part of the proposed N4 Mullingar to Longford (Roosky) road scheme, a project which the applicant notes has been suspended at this point and it is therefore not an existing or permitted road project. During the construction phase there would be some limited impacts arising on the movement of people and via temporary noise that would be generated while the grid connection is being undertaken. There would be no operational impact on population or human health as the grid connection would be laid underground. Therefore, in relation to the proposed grid connection, having regard to all the submissions and documentation provided, including the details contained in the EIAR, I am satisfied that this element of the project would not be likely to give rise to significant effects on population or human health."
606. Grid connection issues are considered in numerous other places throughout the report including at para. 7.3.5.6 in relation to peat stability, at para. 7.3.5.12 in relation to peat implications generally, at para. 7.3.5.35 in relation to potential impact on ground water and on ground water dependent designated sites.
607. When he states that he is satisfied that the EIAR contains sufficient information to enable him to perform the environmental impact assessment the Inspector refers extensively to the EIAR itself. Although not repeating every relevant section in his conclusion, it is evident from the EIAR that the implications and environmental impacts of grid connection in this case were considered under each of the headings mandated in Article 3 of the Directive.
608. Section. 3.8.6 describes in detail the construction methodology for the grid connection. Waterway crossings are examined in s. 3.8.6.5 where it is said that the grid connection route will cross watercourses at sixteen points, and that no instream works are required at any of those watercourse connections. Construction methodologies and detailed drawings are provided in respect of each of the potential water crossings including in certain instances details as to the scale of concrete piping and description of any potential contact with the watercourse during the works.
609. S. 4 of the Report includes a discussion in relation to the potential impact on human beings, population and human health, where it is stated a review was undertaken along the grid connection route identifying properties and planning applications in the vicinity. It was concluded that at any given time the active construction area for the grid connection will be relatively small ranging from 150 to 200 metres in length at any one time. The works will be transient as they move along the route.
610. Section 5 of the EIAR which is concerned with biodiversity records that walkover surveys which were undertaken in preparation for the Report included the grid connection route, that mammal surveys included the grid connection route and that the "zone of influence" for potential impacts on ecological receptors was drawn at fifteen kilometres around both the proposed development site itself and offsite works including the grid connection route.
611. Section 6 records that bird surveys were not undertaken along the grid connection route and it was considered that the grid connection element of the project would have no potential to result in any habitat loss or displacement of birds species or conservation interests.
612. The construction phase of the grid connection was considered in detail. Responses from statutory consultees such as Inland Waterways Ireland and others were all addressed in the EIAR.
613. It was entirely within the competence of the Inspector to form the view that the information and detail provided in relation to the grid connection works was adequate to enable him to perform the EIA. Having regard to the extensive detail of the grid connection route and works it was a conclusion which was within his competence to make and I cannot come to the conclusion that there was no evidence or rational basis for this conclusion by the Inspector.
614. The submission of the Action Group that the absence of a final decision on the route for the grid connection is fatal to be jurisdiction to perform a valid EIA of the entire project flies in the face of the findings by Peart J. in O'Grianna, McGovern J in North Kerry Wind Turbines Awareness Group and Haughton J. in Alen-Buckley. In Alen Buckley, the court rejected an argument that the process was defective because the application had included a description of two alternative grid connection routes being considered. Haughton J. found that all that was required was sufficient information to enable the planning authority to undertake the cumulative EIA. He said that there was clear precedent for presenting alternatives for consideration and EIA such that the Board may consider a range of adverse consequences and mitigation measures dependent of which route is ultimately permitted. He cited the judgment of Hogan J. in Keane v. An Bord Pleanála [2012] IEHC 324, which concerned a windfarm proposal where two haul routes and two potential access points had been described in the application.
615. A separate application will in due course be required for the grid connection, and this could only be made when agreement is concluded with ESB Networks and perhaps other parties. If O'Grianna is to be observed, it is necessary that one assessment be made of the integrated project including the proposed grid connection. Since it is not obligatory to apply for planning permission for the grid connection in the same application the O'Grianna requirement can only be met by providing such information as is available to assess the environmental impacts of the grid connection works subject to being finalised with ESB Networks and other relevant parties. That information having been provided, this Court cannot interfere with this aspect of the Inspector's judgment that he had sufficient information, including information about the preferred route, to perform a compliant assessment.
616. Condition 4, which is the subject of this ground, does not refer specifically to the grid connection. It stipulates that "the mitigation and monitoring commitments identified in the EIAR, and other plans and particulars, including the NIS, submitted with the planning application shall be implemented in full by the developer, except as may otherwise be required in order to apply with the following "conditions".
617. The Action Group claim (E36 and E38) that insofar as mitigation measures in the EIAR referable to the grid connection works relate to lands not owned or controlled by the developer, they cannot be the subject matter of conditions pursuant to s. 34(4) of the Act.
618. Section 34 of the Act provides as follows:-
"Section 34(1) where:-
(a) An application is made to a planning authority in accordance with permission regulations for permission for the development of land, and
(b) All requirements of the regulations are complied with, the authority may decide to grant the permission subject to or without conditions or to refuse it."
619. Section 34(4) provides:-
"Conditions under subsection 1 may, without prejudice to the generality of that subsection, include all or any of the following:-
(a) Conditions for regulating the development or use of any land which adjoins, abuts or is adjacent to the land to be developed and which is under the control of the applicant if the imposition of such condition appears to the planning authority -
i. to be expedient for the purpose of or in connection with the development authorised by the permission, or
ii. to be appropriate, where any aspect or feature of that adjoining, abutting or adjacent land constitutes an amenity for the public or a section of the public, for the purposes of conserving that amenity for the public or that section of the public (and the effect of the imposition of conditions for that purpose would not be to burden unduly the person in whose favour the permission operates)." (Emphasis added)
620. Section 34(13) is also relevant to this issue and provides as follows:-
"A person shall not be entitled solely by reason of a permission under this section to carry out any development."
621. The Action Group submit that since none of the land along the grid connection route lies within the ownership or control of the developer it is not amenable to conditions. It submits that this is a fundamental mistake of law and fact and ultra vires the Board.
622. The Board submits that the effect of s. 34(13), is that the developer may only comply with the conditions and therefore proceed with the development if and when it obtains the necessary consent or agreement of the owners of land which are relevant to the achievement of the mitigation measures referred to in the EIAR and which are incorporated by condition 4.
623. The Action Group relied on McCallig v An Bord Pleanála & Others [2012] IEHC 60. In McCallig planning permission was granted for a windfarm development on the basis of an application which erroneously declared to the planning authority that lands which were shown in the application to be owned or controlled by the applicant developer and could therefore be utilised for required peat regeneration, in fact were not in the ownership or control of the developer. The true owner of the lands concerned had objected to the proposed development and had not given her consent to works on or affecting her land or any part of it. The court found that the objector's lands were materially and significantly affected by the decision to grant permission and Herbert J. restated the principle that conditions of a planning permission cannot be used to burden third party lands. (Emphasis added).
624. The planning permission itself was not quashed in that case, for the different reason that the court found that conditions which required the provision of a peat regeneration area of an equivalent nature and size to the area directly affected by the proposed wind turbines, could be complied with at lands located elsewhere within the developer's lands, and without burdening Mrs. McCallig's land.
625. Unlike the present case, in McCallig the effect of the offending condition would have been to require the carrying out of works on Mrs. McCallig's land without her consent, a clear violation of the provisions of s. 34 of the Act and ultra vires the Board. The permission was only 'saved' by the fact that the condition requiring the provision of a peat recognition area was capable of being met elsewhere.
626. The Action Group rely also on Ashbourne Holdings Limited v An Bord Pleanála & Others [2003] 2 IR 114 where the court was concerned with a condition of the permission for the development of a golf course and clubhouse at the Old Head of Kinsale. The conditions included an obligation on the developer to provide public access to other parts of the peninsula which were in its ownership at a charge to be agreed with the Board. The court was concerned with the provisions of s. 26(2) of the Local Government (Planning and Development) Act, 1963, the predecessor of s. 34(4)(a) of the Act of 2000.
627. Section 26(2) identified certain conditions which may be imposed including at (a) the following:-
"(a) conditions for regulating the development or use of any land which adjoins, abuts or is adjacent to the land to be developed and which is under the control of the applicant, so far as appears to the planning authority to be expedient for the purposes of or in connection with the development authorised by the permission." (Emphasis added)
628. Hardiman J. considered the structure of s. 26, the equivalent of s. 34 of the Act of 2000 and stated the following:-
"The structure of section 26 then is that a general power to impose conditions is subject to a general restriction. This insofar as relevant here, is to consider only the proper planning and development of the area and in doing so to have regard to the matters sets out in s. 26(2)", which included the requirement that the condition be expedient for the purpose of or in connection with the development authorised by the permission.
629. The court found that the imposition of a condition requiring the developer to grant public access to other lands owned by it on the peninsula was not an appropriate condition "expedient for the purpose of or in connection with the development authorised by the permission", in that case the proper planning and development considerations relevant to the golf course and clubhouse. The court was not persuaded that granting public access to other parts of the peninsula was either 'for the purpose of' or 'in connection with' the golf course development. It was therefore ultra vires the powers of the Board and void.
630. Hardiman J. had the following to say:-
"It is clear from the terms of s. 26 that any condition must relate to the proper planning and development of the area. Furthermore a condition relating to a development or use of any land adjacent to the land to be developed and in the same ownership or control requires to be a condition which is expedient 'for the purpose of or in connection with' the development the subject of the permission.
It appears to me that these restrictions on the vires to impose conditions require to be strictly construed."
631. A central difference between Ashbourne Holdings Limited and the present case is that in Ashbourne Holdings the lands which were being subjected to the condition regarding public access were lands in the ownership and control of the developer, but outside the area of the development. The ratio of this part of the judgment is that imposing such a condition must be necessary or connected with the development itself. The court found that the condition obliging the developer to provide public access to other parts of the peninsula was not "necessary or in connection with" the golf course development. It is not therefore a case about conditions relevant to lands not owned or controlled by the developer. In the present case the conditions clearly relate to the works connected with the project, and of course compliance with the condition can only achieved by agreement with relevant landowners. The requirement for their consent means that their lands would not be unilaterally burdened with any conditions. There was therefore nothing irrational or erroneous about the stipulation by the Board of mitigation conditions which would require the developer to obtain third party consents if the project were to proceed.
632. The Action Group claim (E14) that the Board erred in law in carrying out an EIA in respect of alternatives which the applicant submits ought to be limited to consideration of environmental effects. The Statement of Grounds does not identify what matters were taken into account in the consideration of alternatives which ought not to have been taken into account. The Action Group submits that in his report the Inspector included reasons other than environmental reasons as part of the environmental impact assessment and that this is inconsistent with the obligations under the Directive. The Action Group does not claim that the Board failed to consider alternatives from an environmental perspective. They claim only that the Board erred in including other reasons.
633. Article 5 of the Directive prescribes the information which the developer must include at a minimum in his environmental impact assessment report. This includes at Article 5.1(d) the following:
"a description of the reasonable alternatives studied by the developer, which are relevant to the project and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the project on the environment."
634. This requirement is transposed almost verbatim in paragraph 1(d) of Schedule 6 to the Regulations. It is clear from the plain reading of Article 5.1(d) and Schedule 6 that the consideration of alternatives must "take into account" the effects of the project on the environment. That phrase does not mean that the consideration is limited to environmental effects. The Report must provide a description of alternatives studied and state the main reasons for the option chosen. The effects on the environment must be taken into account, but the report must still describe the main reasons for the option chosen.
635. In his Report the Inspector considers the subject of alternatives at s. 7.3.2. It is appropriate to again quote this section in full:
"Regarding the exploration of reasonable alternatives, the applicant carried out a selection process and this is set out in sections 2.4 and 2.7 of the EIAR. An initial nationwide assessment was undertaken based on various constraints and facilitators to identify a suitable region to accommodate the proposed development. The EIAR states that candidate sites were reviewed under the relevant key criteria for the siting of wind energy developments, and it was determined that taking into account the effects of the proposed development on the environment, as well as technical and policy related criteria, the appeal site at Coole represents the optimum location for the proposed development, subject to detailed examination. Reasonable alternatives with respect to site design, development design, ancillary features, including grid connection route, access and land uses are also outlined within the EIAR. Within section 11.8 of the EIAR addressing landscape, the applicant outlines that eighteen turbines were initially considered, however to increase separation distances from residential receptors a revised layout with a reduced number of turbines was arrived at. Turbine locations were also revised to account for telecommunication signals (section 13.2.3.2.2). The applicant clarifies in section 2.7.5.1 of the EIAR that the primary reason for discounting alternative renewal energy developments, such as solar and biomass, was primarily on the basis of the need to minimise the impact on the ongoing commercial peat operations, potential energy outputs and project cost. The option of avoiding the need for a borrow pit and serving the site via quarries only was assessed. Alternative renewable energy options and the 'do nothing' alternatives were also explored. Environmental and other reasons for discounting options are provided."
636. The Inspector then concludes in 7.3.2.1 as follows:
"Having regard to the above, I am satisfied that the matter of the examination of alternatives has been satisfactorily addressed."
637. The Inspector's consideration of alternatives can be described as concise. The obligation to perform a study of alternatives and to state the main reasons for the option chose is an obligation of the developer. The Inspector was acting within his sphere of expertise when deciding that this obligation was complied with. Clearly he had before him a study of the alternatives and, again it is not the function of this court to conduct its own evaluation of the developer's study of alternatives.
638. I have already considered this subject in the context of the application of Mr. Sweetman (Part 11(10)), and found that the effects of the project on the environment were taken into account, in that the chosen location, layout and design of the turbines represented a compromise between the feasibility of the project as a whole, and the minimisation of its footprint on the land.
639. No separate obligation is imposed on the Board to exclude from this part of its assessment information regarding alternatives of the type contained in the EIAR.
640. The Action Group claim that the Board applied an inappropriate test "in respect of the impact on property values". The Statement of Grounds conflates a number of claims, including claims relating to noise and shadow flicker, and relating to the relevance of the Wind Energy Development Guidelines of 2006. As pleaded, these issues arise under three headings.
641. The first relates only to property devaluation. This is a claim made in ground E15 that "the Broad erred in law and applied a test inconsistent with the requirements of the Directive in respect of the (sic) property devaluation where, having acknowledged that the submissions made in respect of the impact on property values were plausible, the Respondent required (sic) an inappropriate test in this regard for the purpose of the Directive requiring that (sic) in respect of those issues raised by the observers that they were not conclusive in relation to this impact. This test is inappropriate to and inconsistent with the obligations of the first named Respondent under the Directive."
642. The second heading in relation to this subject concerns the relevance or otherwise of the Wind Energy Development Guideline 2006. In ground E16 (partly repeated in ground E18) the Action Group allege that the Board "had regard to irrelevant considerations in applying the Wind Energy Development Guidelines which referred to setback, noise and shadow flicker as matters relevant to property values. The Wind Energy Guidelines are predicated upon a scale of a turbine which bears no relationship to the actual extent of the turbines proposed in the application the subject matter of these proceeding."
643. The third aspect of this subject is in ground E17 where the Action Group claim that the Board "acted contrary to the obligations under the Directive by purporting to address such issues (namely shadow flicker) by way of a subsequent planning condition providing for shadow flicker compliance and a monetary (sic) programme to be agreed subsequent to the decision with the Planning Authority". The claim is that such conditions are inconsistent with and contrary to obligations under the Directive in circumstances where no member of the public would have notice of what is intended to be agreed and would have any right to participate in that agreement process.
644. Before I turn to these three aspects it is necessary to summarise how the Inspector addressed these matters.
645. In s. 5 of his Report the Inspector describes the policy context. He examines published statements of European policy, national policy, regional policy and local policy. Under the heading European policy, he references the Renewable Energy Directive 2009/28/EC, the EU Seventh Environment Action Programme to 2020, and the Paris Agreement 2015.
646. Under national policy he refers to the Government's White Paper on Ireland's Transition to a Low Carbon Energy Future 2015-2030, the Government's published Strategy for Renewable Energy 2012-2020, the National Renewable Energy Action Plan 2010, the Climate Action and Low Carbon Development Act, 2015, the National Mitigation Plan 2017, the National Planning Framework, Project Ireland 2040, draft Renewable Electricity Policy and Development Framework - Draft Strategic Environmental Assessment Scoping Report 2016, the Wind Energy Development Guidelines 2006 (the Guidelines) published by the Department of the Environment, Heritage and Local Government, Interim Guidelines for Planning Authorities on Statutory Plans, Renewable Energy and Climate Change, 2017, the Code of Practice for Wind Energy Development in Ireland on Guidelines for Community Engagement published in 2016 by the Department of Environment, Climate and Communications, and the Planning System and Flood Risk Management - Guidelines for Planning Authorities.
647. Under regional policy reference is made to the Regional Planning Guidelines for the Midlands Region 2010 - 2020 published by Midland Regional Assembly and Draft Regional Spatial and Economic Strategy for the Eastern and Midlands Regional Assembly.
648. Local policy considered includes the Westmeath County Development Plan 2014 - 2020 and variations thereof (which I have considered earlier in the context of an allegation of material contravention of the county development plan) and the Longford County Development Plan 2015 - 2021.
649. When referring to the Wind Energy Development Guidelines 2006 (the Guidelines of 2006) the Inspector regarded them, as they are, as guidance issued pursuant to s. 28 of the Planning and Development Act, 2000. That section requires that planning authorities and the Board "must have regard" to the Guidelines in the performance of their functions (emphasis added). [5] In doing so, he listed them among dozens of sources of published guidelines, legislation and policy sources.
650. The Inspector refers to the announcement made by the Minister for Housing and Planning in December 2013 of a consultation process for revisions to the 2006 Guidelines in which the Minister referred to the fact that revisions being identified and considered related primarily to noise, including distance, and shadow flicker and that they had yet to be finalised and formally adopted. The Inspector noted that the main proposals included in the Minister's announcement of a consultation process were as follows:-
ˇ "The setting of a more stringent absolute noise limit (day and night) of 40 decibels (DB) for future wind energy development. This limit is an outdoor limit and it is noted that in general the reduction of noise levels between outside and inside of a dwelling is approximately 10 DB.
ˇ A setback distance of four times the tip height between a wind turbine and the nearest point of the curtilage of any residential property, subject to a mandatory minimum setback of 500 metres per visual amenity purposes.
(In the development under consideration in this case it is stated that the nearest residential property was at a distance of 702 metres from any proposed turbine. Since the turbine height proposed in this case is 175 metres, the setback recommended in this consultation would be 700 metres).
ˇ Proposes to attach a condition to all future permission for windfarms to ensure no shadow flicker at any dwelling within ten rotor diameters of a wind turbine with the requirement that necessary measures are taken if shadow flicker does occur to eliminate them, such as turbine shut down.
ˇ Additional information required in relation to the operation of the turbine for the purposes of monitoring conditions applied."
651. The Inspector observed that subject to a strategic environmental assessment yet to be undertaken on the preferred draft approach it was envisaged that new statutory guidelines would be finalised and issued to planning authorities in 2018. In fact revisions to the Guidelines were not issued by the time the Board considered this case.
652. The Inspector referred also to a circular letter from the Department of Housing Planning and Local Government issued on 3 August 2017.
653. In this letter the Minister referred to the circular of PL20/13 in which the review of the Guidelines had been announced. He reminded local authorities that they had been advised to defer amending their existing Development Plan policies in relation to wind energy and renewable energy generally as part of either the normal cyclical six-yearly review or plan variation processes and instead should operate their existing development plan policies and objectives "until the completion of a focused review" of the Guidelines of 2006. The Minister advised that circular of PL20/13 continues to be the advice of the Department.
654. The letter acknowledged that the review of the Guidelines had taken longer than initially envisaged, including due to the undertaking of extensive public consultation exercises.
655. The letter enclosed new Planning Guidelines entitled Interim Guidelines for Planning Authorities on Statutory Plans, Renewable Energy and Climate Change - July 2017. Those guidelines focused on administrative procedures which should be carried out by planning authorities in the context of any review or variation to a development plan that may arise in the Interim. Again, the letter emphasised that those Interim Guidelines do not replace or amend the substantive Guidelines of 2006. Authorities were reminded that they and the Board are required pursuant to s. 28 of the Act to have regard to the Guidelines of 2006 and to apply any specific planning policy requirements of the guidelines in the performance of their functions.
656. Circular PL5/2017 made it clear that the interim guidelines, although not replacing the Guidelines of 2006 were being issued pursuant to s. 28 of the Act and therefore authorities and the Board were required to have regard to them. Those Interim Guidelines relate to the making of statutory plans and focus on administrative procedures relating to such plans.
657. The Inspector refers to the developer's grounds of appeal and to the Guidelines of 2006.
658. The Inspector in s. 6 of his Report summarises observations made in response to the appeal. He notes the following observations which were made relevant to the Guidelines which he summaries as follows:-
ˇ "The WEDG are a non-statutory document and outdated guidelines and should not be relied on, particularly as they cannot account for local situations or the increase in height and scale of windfarms in the intervening period. Local planning policy takes precedence over these guidelines.
ˇ In the absence of the revised WEDG, permitting the proposed development would be premature.
ˇ Reference is made by observers to 'the unscientific use of a 500 metre separation distance in the WEDG'".
659. Elsewhere, under the heading 'shadow flicker' the Inspector records an observation made which invokes the Guidelines where the observer states "shadow flicker would exceed weekly and annual threshold set in the WEDG".
660. In his assessment, the Inspector makes numerous references to the Guidelines of 2006. The Action Group state, correctly, that over 30 references are made by the Inspector to these Guidelines. However, it is clear from the numerous other sources referenced by the Inspector that he does not rely on them to the exclusion of other sources.
661. In s. 7.2 the Inspector performs his planning assessment. He states at 7.2.2 the following:-
"The appellant asserts that the standards required by policy P-WIN 6 are inappropriate, provide for an effective ban on wind energy projects in Westmeath and that the policy is contrary to government policy and national guidance, including that contained in the WEDG, which suggests that a 500 metre setback provides adequate separation distance between turbines and the nearest sensitive property."
662. He refers to observations made by reference to policy P-WIN 6 and other regional policy guidelines. In 7.2.3 the Inspector refers to a wind energy development capacity map which appears in the Westmeath County Development Plan which identifies the appeal site as being located in a "low capacity" area for wind energy development.
663. The Inspector continues in 7.2.4 as follows:-
"The requirement for a 1,500 metre separation distance (being that contained in P-WIN 6) is at variance with national policy as set out in the 2006 Guidelines, which recommends a 500 metre separation from neighbouring houses."
It is also noted that the Review of the Wind Energy Development Guidelines 2006 - update, issued by the Department of Housing Planning and Local Government in 2017, states that the preferred draft approach for setback distances should be four times the tip height between a wind turbine and the nearest point of the curtilage of any residential property, subject to a mandatory minimum setback of 500 metres and noise assessment. A minimum separation distance of 700 metres would be required for turbines with a tip height of 175 metres, subject to noise assessments."
664. Understandably, the Inspector in this paragraph prefers the Guidelines of 2006 over the local policy P WIN 6 adapted by Westmeath County Council.
665. In 7.2.5 the Inspector refers again to the review of the Guidelines and continues:-
"Whilst the WEDG do not constitute national or regional spatial policy, they include key considerations in the design approach for wind energy development in terms of siting, spatial extent and scale, cumulative effect and spacing, layout and height of wind turbines having regard to their location within one of six landscape character types and their particular sensitivities. The WEDG recommends different scales of spatial extent (generally either small or large) and turbines of different heights (short, medium or tall) as appropriate for different landscape character types. The application turbine site falls within the landscape category 'flat peatland', where the preferred approach is for a large-scale response where tall turbines would be most appropriate. The visual impact of the development is considered in detail further below."
666. Again, this is a clear statement adopting the 'preferred approach' recommended in the Guidelines.
667. The central feature of the grounds stated in E16 and E18 is that the Guidelines are predicated on a scale of turbine which bears no relationship to the extent and scale of the proposed development, or the height of the turbines envisaged in this case.
668. The Guidelines do not limit themselves to any dimensions of turbines. In a footnote to chapter 6.1 of the Guidelines the terms "short", "medium" and "tall" are defined as follows:-
"In 2005, less that 60 metres to blade tip are considered short, 75 - 100 metres medium and over 100 metres tall."
669. Thereafter, as the Inspector has noted in his report, the Guidelines identify which types of landscape are suitable respectively for short, medium or tall turbines. He identifies that the site in this case falls within the landscape category 'flat peatland' where the preferred approach is for large scale response and where "tall" turbines would be most appropriate. Tall is then defined in the footnote to the Guidelines as turbines over 100 metres. Undoubtedly these Guidelines written in 2006 are, as is clear from the Departments circular, in need of an update. But it is clear that as far back as 2006 they envisage turbines of varying heights, including turbines over 100 metres.
670. I do not find that the Inspector erred in failing to conclude that the Guidelines were irrelevant because they did not contemplate turbines of the scale and height proposed in this case.
671. The Inspector continues in 7.2.6:-
"The WEDG advocate that a reasonable balance must be achieved between meeting Government Policy on renewable energy and the proper planning and sustainable development of an area. Projects should not adversely affect the integrity of European sites or have an adverse impact on birds or give rise to peat instability."
672. In 7.2.7 the Inspector refers to the policy context from an EU and national perspective and summarises the position as follows:-
"There is a clear preference within local, regional and national planning policy for large scale wind energy projects to be located on peatlands, particularly cut away bog. I recognise that the appeal site does not fall into the category of cut away bog, as there remains considerable depth of peat substrates and the applicant has acknowledged that the peat extraction operations would continue in tandem with the proposed development, if permitted. The regional planning guidelines recognise the potential of the peatlands in general and not just their associated cut away to accommodate large scale energy production in the form of windfarms."
673. In relation to setback distances the Inspector states the following at 7.2.8:-
"The setback distances required under policy P-WIN 6 of the development plan are at variance with national guidelines set out in the WEDG, which remain statutory guidance under s. 28 of the Act. The proposed windfarm would be compatible with European, national and regional planning and renewable energy policy, as set out in sections 5.1 - 5.3 above and it would contribute to the achievement of European and national renewable energy targets. I am satisfied that the proposed development is situated in a suitable area for wind energy development, including tall turbines, and the proposed development would comply with national strategic objectives and policies in maximising Ireland's renewal energy resources and supporting Irelands transition to a low carbon economy."
674. In 7.2.9:-
"In conclusion the proposed development may be considered acceptable in principle in terms of policy context, subject to consideration of the proper planning and sustainable development of the area and the carrying out of an EIA and AA. Accordingly, planning permission should not be refused for this reason."
675. The Inspector in his EIA refers to the detailed consideration of the visual impact of the development and impacts on residential amenity.
676. In 7.3.3.3 - 7.3.3.5 the Inspector considers the subject of Property Devaluation. These paragraphs are centrally important to the Action Group claims:-
"7.3.3.3 The area in question is relatively lightly populated with extensive commercial peat production predominating in addition to agricultural activities and commercial forestry. As such the agricultural and commercial interventions in the landscape are noted and form the primary backdrop for development in this area. Observers to the appeal assert that the development would lead to depopulation of the area. I am not aware of any evidence that supports the assertion that wind energy developments lead to depopulation. (Emphasis added).
7.3.3.4 It is also asserted in observations to the appeal that the proposal would result in the devaluation of property and that a similar approach to that taken in Denmark should be undertaken, whereby property owners are compensated for the loss in property values close to new windfarm developments. Section 4.6 of the EIAR and the grounds of appeal respond on this matter and note that there have been no empirical studies carried out in Ireland. With reference to a number of American and British studies it is asserted by the applicant that it is a reasonable assumption that the development would not impact on property values and reference is made to positive impacts for property values arising from a study of house prices in Scotland.
7.3.3.5 While the prospect of the proposed development may become a factor in the short term and the potential for impact on values is plausible, the submissions made both by the applicant and observers are not conclusive in relation to the impact in particular, the long-term impact on property values. The WEDG do not refer to the impact on property values, but they do set standards in terms of appropriate setback between properties and turbines, noise and shadow flicker. Therefore if property values are not to be adversely affected, it would be necessary to ensure that the WEDG standards are achieved and that noise and shadow flicker levels are controlled, in order to protect residential amenities." (Emphasis added).
677. The Inspector then considers in detail the questions of shadow flicker and noise, to which I shall return later.
678. In ground E15, the Action Group claim that the Board erred in respect of property devaluation by applying "an inappropriate test for the purpose of the Directive requiring that in respect of those issues raised by the observers that they were not conclusive in relation to this impact," and that "if property values are not to be adversely affected, it would be necessary to ensure that WEDG standards are achieved".
679. They claim that the Inspector fell into error by stating that the prospect of impact on property values is "plausible" and then simply stating, firstly that there is no conclusive evidence of this, and secondly, that it can be avoided by applying WEDG standards.
680. The Inspector examined the subject of shadow flicker in paras. 7.3.3.6 through to 7.3.3.12. He notes that the developer has stated in its grounds of appeal that it is committed to zero shadow flicker at occupied dwellings. He notes also that the Guidelines recommend shadow flicker at dwellings within 500 metres of a turbine should not exceed a total of 30 hours per year or 30 minutes per day. He states that where this is not achieved he would consider the impact of the development to be "significant".
681. The Inspector notes that the Guidelines consider the risk of shadow flicker to be very low at distances greater than 10 rotor diameters from a turbine. In this case the proposed rotor diameter is 140 metres. He notes that there is no directly applicable standards set in terms of the daily or annual receipt of shadow flicker for dwellings in the range between 500 metres and 1,400 metres and he notes that 45 buildings have been identified as being within 1.4 kilometres, including 37 dwellings. The nearest occupied dwelling is one property located approximately 702 metres to the west of turbines 8 and 9 and a number of other properties are located between 711 metres and 775 metres.
682. The Inspector considers evidence presented by the developer of information drawn from a software package Windfarm Version 4.1.2.3 which assumes certain worst-case conditions.
683. The Inspector notes that of the 37 dwellings stated to be within a 1.4 kilometre radius the modelling on a worst case basis predicts that 22 may experience some shadow flicker in excess of the WEDG threshold of 30 minutes per day. Five of those houses are derelict. He then examines evidence of the application of a regional 33.3% average sunshine during daylight hours during the year, by reference to data provided by Met Eireann, and applicable wind direction factors based on wind direction readings from a local met mast. He says that one dwelling may exceed the annual shadow flicker threshold of in excess of 30 hours per annum. He continues at 7.3.3.12:-
"To address excessive shadow flicker, in the first instance I would suggest that it would be preferable to consider same by avoidance through the omission of those turbines that contribute to the excessive levels of shadow flicker. It would seem that no consideration was given to this by the applicant. Section 4.9.3.9 of the EIAR sets out the features to be employed to limit the instances of shadow flicker at any affected property, which entail establish practises, including a screening assessment, screening measures and/or wind turbine control measures."
684. The Inspector concludes at 7.3.3.14:-
"Taking into consideration the application of the worst case scenario, assumptions as set out above and the application of guideline thresholds referenced for properties within 500 metres of a turbine to all properties within the 10 rotor diameters, in addition to the actions to be employed should the relevant parameters be exceeded, I consider the assessment to be robust. The potential impact arising from shadow flicker on properties in the vicinity would not be significant with the exception of shut down days to be outlined with respect of turbines 2, 3, 4, 5, 8, 9, 10, 11, 12 and 13, to ensure the daily and annual shadow flicker to the nearest dwellings is below the 30 minutes per day and 30 hour per year threshold. I consider that the issue can be adequately addressed by way of a condition comparable to that employed in other applications of windfarm development, whereby provision is made for the implementation of a windfarm shadow flicker compliance and monitoring programme, details of which to be agreed with the planning authority. Accordingly, I am satisfied that the (sic) human health impacts would not arise from shadow flicker caused by the movement of turbine blades, as this would be addressed via the separation distances achieved and by operational parameters to include shut down times." (emphasis added).
685. In addition to the various headline policy documents referenced above, the Inspector noted in an appendix to his Report a series of 35 "additional reference documents". They include such matters as:-
ˇ Guidance Note on Noise Assessment of Wind Turbine Operations at EPA licensed sites (NG3) (EPA, 2011)
ˇ Guidelines for Landscape and Visual Impact Assessment Guidelines (IEMA, 2013)
ˇ Government policy statement on the Strategic Importance of Transmission and other Energy Infrastructure (DCENR, 2012)
ˇ Guidelines for planning authorities and An Bord Pleanála on carrying out environmental impact assessments (EIA) (Minister for Housing Planning and Local Government, 2018)
ˇ Code of Practice for Wind Energy Development in Ireland on Guidelines for Community Engagement (Department of Communications, Climate Action and Environment 2016)
ˇ Visual representation of windfarms guidance (Scottish Natural Heritage, 2017)
686. In its decision of 26 March 2019 the Board records that in arriving at its decision it had regard to: -
"(a) European, national, regional, and local policy and targets with regard to the development of alternative and indigenous energy sources, (b) the provisions of the WEDG, (c) the policies of the planning authority as set out in the Westmeath County Council Development Plan 2014 - 2020, and (d) the location of the wind farm site primarily on flat peatlands, which are acknowledged within the Wind Energy Development Guidelines - Guidelines for Planning Authorities and the Midland Regional Planning Guidelines 2010 - 2012, as having potential to accommodate large scale energy production in the form of wind farms."
687. Finally, in relation to shadow flicker the Board imposed condition no. 10 which states as follows:-
(a) Shadow flicker arising from the proposed development, by itself or in combination with other existing or permitted wind energy development in the vicinity, shall not exceed 30 hours per year or 30 minutes per day at existing or permitted dwellings or other sensitive receptors.
(b) The proposed development shall be fitted with appropriate equipment and software to control shadow flicker in accordance with the above requirement. Details of these controlled measures shall be submitted to and agreed in writing with the planning authority prior to the commencement of development.
(c) A report shall be prepared by a suitable qualified person in accordance with the requirements of the planning authority, indicating compliance with the above shadow flicker requirements at dwellings. Within twelve months of commissioning of the proposed windfarm, this report shall be submitted to and agreed in writing with the planning authority. The developer shall outline proposed measures to address any recorded non-compliances, controlling turbine rotation if necessary. A similar report my be requested at reasonable intervals thereafter by the planning authority.
688. The reason stated is "in the interest of residential amenity".
689. None of the EIA Directive, the Act or the Regulations refer to any requirement to assess the impact of a proposed development on property values. The nearest they come to a consideration of the impact on property values is the reference to the effect on population and human health (s. 171A(b)(i)(1) and s. 171A(b)(i)(iv), each being a transposition of Article 3.1 of the Directive). There is no defined test for EIA as regards impact on property value.
Despite this, the Inspector includes within the part of his Report covering Population and Human Health (7.3.3), a section on "Property Devaluation" (7.3.3.3) followed by the sections on Shadow Flicker (7.3.3.6) and on Noise (7.3.3.15). The essence of his recommendation under this heading is as follows:-
(a) He is not aware of any evidence supporting the assertion that wind energy developments lead to depopulation (7.3.3.3)
(b) He determines in 7.3.3.5 that "while the prospect of the proposed development may become a factor in the short-term and the potential for impact on values is plausible, the submissions made both by the applicant and observers are not conclusive in relation to the impact, in particular the long-term impact on property values." (Emphasis added)
690. The complaint made in E15 of the Statement of Grounds is that the Inspector applied an inappropriate test, by finding that the evidence advanced by the observers was or was not conclusive in relation to impact on property values and it said that this was an inappropriate test to apply.
691. In making this conclusion the Inspector stated that there has been no empirical studies carried out in Ireland as to the connection between windfarms and depopulation or devaluation of property. He refers to a report in Scotland to the effect that in anything the effect on property values in the vicinity of windfarms has been shown in certain instances to be positive.
692. The purpose of the Directive is to require authorities to perform assessments of the effects on the environment of projects planning permission is granted or refused. There is no provision in the Directive requiring assessment of impact on property values. Nothing in the Directive or the Act stipulates that it is a precondition of consent that property values must not be diminished or that there will be no adverse effect on property values in and of itself. Insofar as the Inspector considered 'Property Devaluation' he recognised that potential for impact on property values is plausible. He then observes that the Guidelines do not refer to impact on property values but that "they do set standards in terms of appropriate setback between properties and turbines, noise and shadow flicker", and concludes that "if property values are not to be adversely affected it will be necessary to ensure that the WEDG standards are achieved and that noise and shadow flicker levels are controlled in order to protect residential amenities".
693. Noise and shadow flicker are considered separately by the Inspector under the heading Population and Human Health. As far as property devaluation is concerned, there is some force in the submission of the Action Group that it is unsatisfactory for the Inspector to simply say that "if property values are not to be adversely affected" it will be necessary to ensure that the WEDG standards are achieved. If the Directive or the Act required that there be a definitive finding that property values will not be adversely affected, this form of conclusion would not meet the test. Equally his statement that neither of the submissions of the developer or observers "are conclusive" would not meet such a test. But no such conclusion is required, and this ground cannot succeed.
694. In ground E16 the Action Group claim that the Board had regard to irrelevant considerations in applying the WEDG which refer to setback, noise and shadow flicker as matters relevant to property values.
695. Since impact on property valuation is not of itself required to be assessed, this ground would fail as regards relevance to property valuation. But in E18 the Action Group claim more generally that the Board "erred in law in its consideration and determination of the application in circumstances where the Wind Energy Guidelines bears no relationship to the nature, extent and scale of the development proposed in this application".
696. Height is referred to throughout the Guidelines under numerous headings. In chapter 6 which concerned aesthetic considerations in siting and design, diagrams are included to illustrate suitable sitings, layouts and scale appropriate for different landscapes. The diagrams are presented under a series of headings including siting, spatial extent on scale with landscape, cumulative effect, spacing of turbines, layout of turbines and "height of turbines (tall, medium, short)". Under each of these headings height is considered. For example, in the context of siting the Guidelines discuss suitable location, suitable topographic profiles, suitable sectional profiles, relationships with other features of the landscape, spatial extent and scale and cumulative effect. In s. 6.8 the Guidelines state that height involves both the actual height and the perceived height relative to topography, meaning there are no absolute parameters for height, even in the context of guidelines. It explains that different possibilities are acceptable depending on context. It says that turbine height is critical in landscapes of relatively small scale or which comprise features and structures such as houses where they must be visually considered so as to achieve a visual balance and not to visually dominate. It is said that at hilly or flat farmland turbines will "tend not to be tall". Elsewhere it is stated that in a peatland setting:-
"Aesthetically, tall turbines would be most appropriate. In any case in terms of viability they are likely to be necessary given the relatively low wind speeds available. An even profile would be preferred."
697. In all of these references to height nowhere are the Guidelines prescriptive as to what are appropriate maximum or minimum heights. The terms short, medium and tall are defined in a footnote to part 6.1 where it is stated as follows:-
"In 2005, less than 60 metres to blade tip are considered short, 75 - 100 metres medium and over 100 metres tall."
698. There is no reason to conclude that turbines having a maximum height of 175 metres, as in this case, are outside the contemplated scope of the Guidelines, and I do not find that they were an irrelevant consideration.
699. The Inspector's Report contains numerous references to the Guidelines. In a number of places he refers to setback shadow flicker and noise criteria which are stated in the guidelines. He uses phrases which imply that he is attaching an almost statutory or otherwise binding weight thereto. For example, in 7.3.3.11 he states that "one dwelling may exceed the annual shadow flicker threshold". In 7.3.3.10 he mentions that a number of the dwellings "may experience some shadow daily flicker in excess of the WEDG threshold of 30 minutes per day".
700. He refers to the Guidelines as recommendations, yet the use of phrases like "the WEDG threshold" and "the annual shadow flicker threshold" show that he is attaching importance to those recommendations.
701. It is apparent from the indebth examination of shadow flicker and noise in s. 7.3 generally that the Inspector did not limit his analysis to the parameters recommended in the Guidelines. In 7.3.3.14, which relates to shadow flicker he identifies a number of the factors which inform his conclusion where he states: "taking into consideration the application of the worst case scenario, assumptions as set out above and the applications of the Guideline thresholds referenced for properties within 500 metres of a turbine to all properties within the 10 rotor diameters, in addition to the actions to be employed should the relevant parameters be exceeded, I consider the assessment to be robust."
702. The Inspector recognised shadow flicker and noise as potential issues and paid attention to the treatment of those issues in the Guidelines. But he recorded earlier in the Report that he had considered not only the Guidelines but numerous other published works of research and guidelines, statutory and others before reaching his conclusions on the issues, namely in relation to shadow flicker that "the human health impacts would not arise from shadow flicker caused by the movement of turbine blades, as this would be addressed via the separation distances achieved and by operational parameters to include shut down time" and in relation to noise that "the proposed development would not have a significant adverse impact on residential and other noise-sensitive properties arising from noise."
703. The Action Group submitted that this case was "on all fours" with the case of Balz v An Bord Pleanála and Others [2019] IESC 90. I disagree.
704. In Balz the Inspector and the Board had before them an EIAR which included a section dedicated to noise and vibration and addressed the requirements of the Guidelines of 2006 and an earlier, 1996, document which had been issued in the U.K. by the Energy Technology Support Unit of the Department of Trade and Industry addressing "the assessment and rating of noise from windfarms" (the ETSU document). It is said that the contents of the ETSU Document dating from 1996 informed much of the content of the Guidelines of 2006.
705. The EIAR also referred to the announcement by the Department of Housing Planning and Local Government in December 2013 of a review of the Guidelines. The Board made its decision on 19 May 2017, granting consent for the windfarm development, six weeks before the circular PL5/2017 issued by the Department on 3 August 2017 referring to the ongoing consultation process and which reminded authorities that the Guidelines of 2006 had not been replaced or amended.
706. Before the Inspector made his report he had received on behalf of a number of objectors, a submission by their solicitor, a Mr. Noonan, under cover of a letter dated 29 June 2016. The letter from Mr. Noonan was a 21-page letter with 35 enclosures, 19 of which were directed towards to the question of noise.
707. As described by O'Donnell J., as he then was, Mr. Noonan's letter was a comprehensive challenge to the approach of the Board in respect of wind turbines. Mr. Noonan had submitted that the 2006 Guidelines were out of date, rested on assumptions derived from the prevailing state of knowledge at the time they were drafted, that time had moved on and knowledge had evolved. He submitted that the Department had publicly stated that the 2006 Guidelines were not now fit for purpose in fundamental respects. Mr. Noonan submitted that the December 2013 announcement by the Department of a consultation process to revise the Guidelines was a clear admission that the Department accepted that the 2006 Guidelines were not supported by robust or up to date evidence which enabled policy to be implemented in a manner which safeguards residential amenity. It was said that this was evidenced by several expert studies and published articles by acoustic consultants and others, all of which were appended to Mr. Noonan's letter.
708. It had been submitted that the Board could not grant permission for the windfarm in reliance on the 2006 Guidelines so far as concerns the issues of noise, shadow flicker and separation distances. It was submitted that international planning and regulatory practise had already evolved in this regard and greater separation distances were now being adopted in other jurisdictions.
709. The Inspector in Balz recorded these submissions and summarised them. In relation to the submissions regarding to the 2006 Guidelines he concluded by stating the following:-
"The 2006 Guidelines are based on the U.K. Department of Trade and Industry, Energy Technology Support Unit (ETSU) Publication 'the Assessment and Rating of Noise from Wind Farms' (1996). Claims by objectors that this ETSU publication is outdated and not fit for purpose is not a relevant planning consideration. The 2006 Guidelines are as they are, and remain in force. Proposed changes to these guidelines, outlined in the Department of Environment Community and Local Government 'Proposed Revisions to Wind Energy Development Guidelines 2006 - Targeted Review in relation to Noise, Proximity and Shadow Flicker' (December 2013) have not yet been adopted." (emphasis added).
710. When the matter came before the Supreme Court there was still a dispute as to whether, as the Board contended, the Inspector had considered Mr Noonan's submission regarding the unreliability of the Guidelines or whether he had simply decided not to consider that submission, it being "not a relevant planning consideration".
711. The Board submitted that it should be deduced from the text of the Inspector's Report that he must have considered the submissions of Mr. Noonan. The court rejected that submission and held that it could only infer, by reference to the evidence, that the Inspector had decided that he could not entertain submissions directed to whether the Guidelines were adequate or fit for purpose. Therefore he had discounted the submissions and treated them as irrelevant and that approach was adopted and approved by the Board.
712. O'Donnell J. concluded held that the Board's approach was in error. He said that it was open to a party, whether seeking or resisting a planning permission to put before a planning authority and the Board information, material and submissions suggesting that the decision maker should depart from the Guidelines to a greater or lesser extent. This is what the objectors had done in that case.
713. The court had regard to the fact that the submission of Mr. Noonan was extensive and not, as O'Donnell J. put it, "merely one rather eccentric side of an academic controversy, but rather something which was required to be considered" namely a substantial, evidence-based submission regarding the applicability of the Guidelines.
714. The court concluded that the Board ought to have at least considered submissions to the effect that little weight should be placed on the Guidelines, those submissions having been supported by Mr. Noonan's letter and extensive reports and research. The Inspector and the Board had instead simply rejected the submission in limine on the basis that a determination of the matters contained in the submission were irrelevant.
715. In this case the Inspector referred only in very concise terms to the submission made by observers to the effect that the Guidelines were out of date or "unscientific" having regard to developments and the passage of time. He did not, as had occurred in Balz, refuse to consider the submission. In Balz, the submission had been made in a 21 page letter accompanied by 35 enclosures, comprising reports, publications and research, which the Inspector simply decided were not a relevant planning consideration.
716. Contrary to the case made by the Action Group, the court in Balz did not find that the 2006 Guidelines were irrelevant. The error which it found the Board had made was deciding that submissions that the Guidelines were out of date, extensive as they were, and supported by substantive reports and other materials, were not a relevant planning consideration and therefore could not be entertained. Balz is not therefore a decision that the Guidelines are irrelevant. It is a decision that the Inspector's recommendation that the Board give no consideration to the submissions received on this subject was made in error. That was clearly not the basis of the Board's decision in this case.
717. In seven pages of his Report in this case (22-29) the Inspector considers the context of European, national, regional, and local policy, including the WEDG. In 12 pages (44-56) he summarises the observations made, including observations that the WEDG are non-statutory (which is patently incorrect since they were issued pursuant to s.28 of the Act) and out of date. The fact that he does not embark on a discursive recital of each and every one of those observations does not mean that he did not consider them, much less, as the Inspector in Balz did, decide that they were not valid planning considerations. Furthermore, it is clear from his references to the WEDG throughout the Report that although he attached weight to them to varying degrees, particularly in the context of shadow flicker and noise, he did not treat them as the definitive or only governing principles and rely only on them.
718. A further difference is that, in this case the Inspector and the Board had before them the circular of 3 August 2017, which reminded authorities that the 2006 Guidelines were still in force, something which was not before the Inspector in Balz.
719. The case made in the Action Group's Statement of Grounds is that the Guidelines were irrelevant because they were predicated on a scale of a turbine which bore no relationship to the size of the proposed turbines. It contains no claim either that the Guidelines were generally out of date or that the Inspector failed to consider any submission that they are out of date (although in submissions counsel for the Action Group sought to make both of these points).
720. It is not pleaded that the Inspector regarded himself as bound only by the 2006 Guidelines. It is clear from his extensive Report that he had regard to extensive other evidence and guidance, particularly when it came to such matters as shadow flicker and noise. The Guidelines of 2006 feature largely and very influentially in his Report and are cited in the decision of the Board. However, in circumstances where the Inspector and the Board had before them the Department circular reminding them that the Guidelines were still in full force and effect, I cannot find that a consideration or application of the Guidelines was an irrelevant consideration of which the Board ought not to have taken account.
721. The Action Group claim that the Board acted contrary to its obligations under the Directive by addressing shadow flicker issues by way of a subsequent planning condition, Condition No. 10, providing for "shadow flicker compliance and a monetary (sic) programme". Condition 10 contains no reference to a monetary programme. Monetary conditions feature in Conditions 17, 18 and 19 and are unrelated to shadow flicker. The condition recommended by the Inspector in 7.3.3.14 and which became Condition 10 of the Board's decision is a condition which;
(a) limits the permissible number of hours per year or per day shadow flicker affecting dwellings, and
(b) applies a monitoring programme to be submitted to the planning authority within twelve months of commissioning of the wind farm. This entails submission to and agreement with the planning authority of ongoing reports as to compliance with the limits stipulated.
722. In 7.3.3.14 the Inspector states, having recognised the potential impact arising from shadow flicker on properties:-
"I consider that the issue can be adequately addressed by way of a condition comparable to that employed in other applications for wind farm development, whereby provision is made for the implementation of a wind farm shadow flicker compliance and monitoring programme, details of which to be agreed with the planning authority."
723. The Action Group's ground that planning conditions requiring subsequent agreement with the planning authority are contrary to the Directive is repeated in relation to a number of other conditions. Therefore in this section I consider this ground generally.
724. The claim as expanded in ground E17 is that the condition which requires the fitting of appropriate equipment and software to control shadow flicker, and that details of this equipment and software be submitted to and agreed in writing with the planning authority prior to commencement of development works is inconsistent with and contrary to the Directive because the public will have no notice of what is intended to be agreed, and have no right or opportunity to participate in that agreement process.
725. Condition 10 (c) requires the preparation a "report of a suitably qualified person in accordance with the requirements of the planning authority indicating compliance with the shadow flicker requirements at dwellings" and that "within twelve months of commissioning of the proposed windfarm, this report shall be submitted to and agreed in writing with the planning authority."
726. The same or broadly similar commitments are contained in Condition 5 which relates to an Environmental Management Plan, Condition 6 the preparation of a landscaping and diversity scheme, Condition 7 design requirements for the turbines themselves, Condition 9 noise monitoring, Condition 11 telecommunications, Condition 13 design of roads and bridges, Condition 14 archaeological appraisal, Condition 15 decommissioning and reinstatement, Condition 17 the provision of security for public road reinstatement, Condition 18 the provision of security for site reinstatement and Condition 19 the provision of a development contribution scheme, being financial contributions in respect of the public infrastructure and facilities benefiting the development.
727. All of these conditions require that mitigation measures or other details be submitted to and agreed in writing with the planning authority.
728. Condition 12 requires that details of the aeronautical requirements of the project be submitted to and agreed in writing with the planning authority prior to commencement of the development and that prior to commissioning of the turbines the developer must inform the planning authority, the Irish Aviation Authority and the Department of Defence of the tip heights and coordinates of the turbines.
729. It is important to refer again to Conditions number 1 and 4. Condition No. 1 states the following:
"The development shall be carried out when completed in accordance with plans and particulars lodged with the application except as may otherwise be required in order to comply with the following conditions. Where such conditions require details to be agreed with planning authority the developer can agree such details in writing with the planning authority prior to the commencement of development and the development shall be carried out when completed in accordance with the agreed particulars."
730. This is an unequivocal condition requiring the developer to carry out the development in accordance with plans and particulars lodged, with all the detail that entails. The condition that the developer must agree any details in writing with the planning authority prior to commencement of the works is not, as has been suggested by the Action Group a mere "agreement to agree" or in the nature of a "blank cheque" for the developer. If the planning authority does not grant its agreement in respect of any detail submitted, and the developer is therefore unable to comply, the development cannot proceed. The authority has the final say on such details and there is nothing in the way of a "discretion" conferred on the developer to vary or update specifications or dimensions or other features of the project at will.
731. Many of the Action Group's submissions are based on the premise that the developer is vested with discretion to unilaterally vary or amend plans, specifications or dimensions and proceed accordingly. That is not the case and the authority has the final say.
732. Condition 4 provides:
"The mitigation measures and monitoring commitments identified in the EIAR, and other plans and particulars, including the NIS submitted with the planning application shall be implemented in full by the developer except as may otherwise be required in order to comply with the following conditions."
Again, the words "in full" mean what they say and the developer is bound by the mitigation and monitoring commitments contained in the plans and specifications submitted.
733. The Action Group submit that the phrase "except as may otherwise be required in order to comply with the following conditions" diluted this commitment and obligation and introduces a flexibility in respect of all of the matters which follow and which are to be subject of later conditions requiring agreement between the developer and the planning authority. This argument rests on the flawed proposition that there is conferred on the developer a discretion to alter or redesign aspects of the project and to deviate from the core obligations contained in conditions 1 and 4 to adhere "in full" to the plans and particulars already lodged.
734. The second paragraph of condition 4 states:
"Prior to commencement of development, the developer shall submit to, and agree in writing with, the planning authority, a schedule of those mitigation measures and monitoring commitments, and details of a time schedule for implementation of the mitigation and associated monitoring"
This paragraph does no more than oblige the developer to describe in one schedule the mitigation measures and monitoring commitments already submitted and to provide details of a time schedule for implementation of those measures. This is not, as has been suggested in submissions, a requirement for the production of a schedule containing new measures and commitments. It is a condition requiring adherence to the plans and specifications already lodged and that they be collated into a single document. Even the timelines associated with implementation of the relevant measures require to be agreed in writing with the authority as is clear from condition 4 itself.
735. The Action Group claim also that Condition 4 is void for uncertainty insofar as it requires that mitigation measures identified in the EIAR and other plans and particulars submitted shall be implemented in full by the developer. They claim "that it is impossible to discern with any degree of certainty or particularity the obligations that are contained in condition 4. The obligations in condition 4 are therefore incapable of precise definition or formulation and the condition is void for uncertainty."
736. This submission ignores the existence of condition no. 1 which requires that the development be carried out in accordance with the plans and particulars lodged with the application, "except as may otherwise be required in order to comply with the later conditions". Secondly, condition 1 stipulates that where any of the conditions attached to the planning permission require details to be agreed with the planning authority the developer must agree those details in writing with the planning authority prior to commencement and the development shall be carried out and completed in accordance with agreed particulars.
737. The level of detail including description not only of construction methods, specifications, and dimensions of the project together with mitigation measures and monitoring measures are addressed extensively in the EIAR and the NIS submitted. One could never have required the Board to repeat those extensive provisions in the decision itself and it is well established that in reading the decision of the Board it is appropriate to refer to the source documents cited, including those submitted in support of the application.
738. The Action Group submit that because the detail of specifications, mitigation measures and proposed maintaining commitments contained in the planning application, together with the EIAR and the NIS are so numerous that this of itself generates uncertainty. The reverse is true. The detail in the plans submitted, including the extensive provisions for mitigation described in every chapter of the EIAR, bind the developer save where, in respect of any detail, the variation of detail is necessitated as the project develops and modifications agreed with the planning authority. This is not, as has been contended, a license to agree further conditions or further variations on the specification. At all times the project must remain compliant with the decision and it was within the competence of the Board to determine what level of specificity was required in its decision.
739. There is a long line of authority upholding conditions of the type attached to the decision in this case, including cases relating to windfarms.
740. In Houlihan v An Bord Pleanála and Others (4 October 1993) (Murphy J.) the decision of the Board provided for twelve matters on which the subsequent agreement of the planning authorities was required. It had been contended on behalf of the Board in that case that all of these conditions were technical matters which in the interests of all parties can and should be delegated by the Board to the local authority. Murphy J. had the following to say:-
"Undoubtedly some degree of flexibility must be left to any developer who is hoping to engage in a complex enterprise. The issue then is whether the nature or quantity of the matters left undefined is such as to render the permission granted invalid."
741. In Houlihan Murphy J. found that the decision of the Board provided that finalising a route for the effluent discharge main would be subject to the limitation only that it run in an easterly direction. Murphy J. considered this to be an improper abdication by the Board of its responsibilities. He emphasised that he "did not doubt their right to delegate to the planning authority power to agree with the developer the revisions of the layout which would be consequent upon the resetting of the boundary" but found the particular condition relating to the general direction of effluent works to be an improper delegation.
742. In Boland v An Bord Pleanála [1996] 3 IR 435 the Board granted permission for a development consisting of the extension and refurbishment of a ferry terminal at Dun Laoghaire. The permission was granted subject to a number of conditions which required the developer, in that case the Minister for the Marine and Others to agree certain matters with the planning authority including plans for the management of ferry traffic, the level of contribution for off site traffic works, arrangements for monitoring post development traffic flows, new design plans for traffic access and egress arrangements and plans for pedestrian works on lands within the ownership and control of the Minister.
743. Keane J. stated the following:-
"The question as to whether the imposition of conditions of this nature constitutes an improper abdication by the Board of its statutory role is essentially a matter of degree which must be resolved having regard to the circumstances of the particular case."
744. Hamilton CJ. summarised with approval the conclusions reached by Keane J. and said the following:-
"(1) He adopted the view of Murphy J. in Houlihan that the question as to whether the imposition of conditions of this nature constituted an improper abdication by the Board of its statutory role was essentially a matter of degree which must be resolved having regard to the circumstances of the particular case.
(2) In the present case the matters which were left to be agreed between the Minister and the planning authority were, of their nature, such as to render the imposition of detailed conditions impractical. In this connection, the statutory role of the Board must be borne in mind. In a sense, it was functus officio when it gave a decision on appeal. It had no further role in the policing of the permission which it has granted nor had it any day-to-day responsibility for the enforcement of the Local Government (Planning and Development) Acts, 1963 to 1993, in the area of the planning authority. That was the function of the planning authority who also, in its capacity as roads authority, had continuing responsibilities in relation to traffic in its area which were not within the province of the Board.
(3) Taking all those factors into account, it could not fairly be said that the imposition of conditions of this nature constituted an abdication by the Board of its statutory duties."
745. The court considered that the conditions identified in the Board's decision in that case contained sufficient detail to enable the developer and the planning authority to comply with the requirements of the Board.
746. In the same case Blayney J. had the following to say, which has particular resonance for the present case:-
"The applicant as a member of the public says that one of the reasons he objected to this development is because of the traffic it would generate and he says that because of the form of the conditions he will be precluded from objecting to the ultimate form of the works to be carried out pursuant to these conditions. This is undoubtedly so, but in my opinion no right of the applicant will be prejudiced as a result. The applicant's objection to the development on the grounds that it would increase excessively the traffic at the port was clearly rejected by the Board. However, the Board took the view that the traffic needed to be regulated and imposed the conditions in question with this in view. The applicant could not possibly have any grounds for objecting to this. On the contrary, once permission for the development had been given, it was clearly in the interest of the applicant that conditions should be imposed which would ensure to the greatest possible extent that there would be proper management of the traffic."
747. Blayney J. agreed with the judgment of the Chief Justice and added the following:-
"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?"
748. On the question of agreement Blayney J. said the following:-
"When a matter is left to be agreed between two parties, there is always the possibility that they may not be able to agree, and in that event what is to happen? In the instant case, from the practical point of view, since the Minister (the developer in that case) is obliged to get the agreement of the planning authority, it is the view of the planning authority which will prevail."
749. In People Over Wind & Ors v. An Bord Pleanala [2015] IEHC 271 Haughton J. considered this question:
"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 Act. 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."
750. Haughton J. cited the following passage in a judgment of Clarke J. in Arklow Holdings Ltd v. An Bord Pleanala [2006] IEHC 15, where he stated:
"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 no 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."
751. In People Over Wind Haughton J. held that the conditions in that case relating to further agreement on haul routes related to technical matters of detail and were appropriate for subsequent agreement between the developer and the local authority.
752. Haughton J. also considered the question of whether such conditions amount to an abdication of decision making authority on the part of the Board. He considered the judgment in Boland v. An Bord Pleanala and cited the extracts from the judgment of the Chief Justice and of Blayney J. which I have considered earlier.
753. Haughton J. considered the question of such delegation and referring such conditions to the planning authority in the context of appropriate assessment for the purpose of the Habitats Directive. On this subject he had this to say:
"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 (the developer in that case). 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 National Parks and Wildlife Services and/or IFI."
754. Haughton J. continued:
"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."
755. Haughton J. restated the principle that it is for the deciding authority to determine whether the EIS and the information contained therein satisfied the requirements of the Regulations and is adequate. He cited with approval the following passage from the judgment of MacKechnie J. in Kenny v An Bord Pleanála [2001] 1 IR 565 where he stated the following:-
"Once the statutory requirements have been satisfied I should not concern myself with the qualitative nature of the Environmental Impact Statement 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."
756. Finally, in People Over Wind v An Bord Pleanála Haughton J. noted that conditions which were attached to the decision, and which related to shadow flicker were such that they could themselves be the subject of enforcement proceedings by the local authority or any affected party, thereby giving them the force they required.
757. In Alen Buckley and Others v An Bord Pleanála and Others [2017] IEHC 541 Haughton J. again considered questions associated with conditions and the leaving over of certain matters to be finalised by agreement between the developer and the planning authority:
"This Court in People Over Wind v An Bord Pleanála [2015] IEHC 271 found conditions such as the requirement to submit a Construction Management Plan as being valid, notwithstanding that this involved leaving matters over to be finalised by agreement between the developer and the planning authority.
In that case certain mitigating conditions were imposed which were very onerous to the point where the applicants argued they would be near impossible to fulfil. In response to that argument I found: '...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.' The same reasoning applies in the present case. If the developer is unable to obtain the consent of the third parties whose lands will be affected by the additional mitigation works, if they are unable to obtain planning permission for the grid connection, or if they are unable to obtain the appropriate licenses for the road works, this simply means that the permission as granted cannot be implemented. It does not make such conditions or the planning permission to which they attach invalid."
The matter of leaving over certain mitigation measures for subsequent agreement between the developer and the local planning authority is a point which is long settled - see Murphy J. in Houlihan v An Bord Pleanála (unreported High Court, 4 October, 1993) and the Supreme Court in Boland v An Bord Pleanála [1996] 3 IR 435.
758. In this case the Supreme Court was concerned with the absence of public participation in the leave stage, in applications for substitute consent pursuant to s. 177 of the Act, as amended.
759. Applications for substitute consent are made in two stages. The first is an application for leave to apply for substitute consent.
760. Under s. 177H of the Act members of the public have a right to make submissions and observations only in the second stage, the substantive application for substitute consent. There is no provision for public participation in the leave application. The court held that the failure to make provision for public participation in the leave application is inconsistent with the public participation rights conferred by the EIA Directive.
761. The court rejected a submission that the requirement for public participation could be imported into the procedural requirements for substitute consent, McKechnie J. held that when the regime for substitute consent is read as a whole the absence of public participation at the leave stage was clearly and deliberately intended by the legislature. It was therefore "a closed process".
762. McKenchie J. put it thus:-
"I am satisfied that European law requires that the public be entitled to participate at the application for leave stage of the substitute consent process... It is not a mere technical or box-ticking exercise, rather it is a highly significant aspect of the overall process... while some matters which arise for consideration at the leave stage overlap with those which fall to be considered on the later stage, there are some matters, notably the issues of exceptional circumstances and/or the circumvention of EU law, which are finally determined at the leave stage. The legislative scheme does not permit those matters to be revisited subsequently; accordingly, as the domestic law stands, the public is therefore denied any opportunity to make submissions on such matters."
763. The court concluded that in this respect, Part XA of the 2000 Act fails to provide for effective participation "at a stage when all solutions remain open". McKenchie J. held that, given the structure of s.177, the failure to make provision for public participation at the leave application stage for substitute consent is inconsistent with the public participation rights conferred by the EIA Directive.
764. The Action Group submit that this judgment means that any exclusion of the public from the decision-making process is incompatible with the Directive. As an extension, they submit that the conditions of the permission which provide for details to be later agreed between the developer and the planning authority, without a mechanism for public participation, as permitted by s. 34(5) of the Act, are themselves incompatible with the public participation requirements of the Directive.
765. In An Taisce, the court was concerned with the fact that at the leave stage of the substitute consent process the decider needed to consider such fundamental questions as whether exceptional circumstances existed such as would be appropriate to permit the regularisation of a development by permitting an application for substitute consent. Once a decision was made to grant leave to apply for substitute consent, the option of making the substantive decision of refusing such leave was no longer open. Therefore, the public were excluded from participation in such a fundamental decision. The opposite is the case here. Insofar as the public were on notice of the application for planning permission and EIA of the windfarm itself, the public were afforded the opportunity to participate and make submissions, at the stage when all options were open regarding the decision to grant or refuse planning permission and if so on what conditions. An Taisce is not authority for the proposition that s. 34(5) requires that a further 'round' of public participation be opened in the post consent agreement between a planning authority and the developer. This ground must fail as regards the conditions. This does not cure the fundamental omission in this case of public notice of the EIA of the project described, with the consequence found in Part 12(6) above.
766. Directly related to the question of what is an appropriate level of detail is Condition No. 5, which relates to the submission of an Environmental Management Plan. Before I turn to that Condition, I should refer to a document which accompanied the EIAR submitted by the developer, described as a Construction and Environmental Management Plan (CEMP). This document runs to 97 pages and 6 appendices. It is stated to have been prepared in conjunction with the EIAR. In the introduction it is stated that should the project secure planning permission the CEMP will be updated, in line with all conditions and obligations which apply to any grant of permission. The introduction continues:-
"The CEMP should be read in conjunction with the EIS/EIAR and planning drawings. The CEMP will also require updating by the selected contractor in order to identify, assess and satisfy the contract performance criteria as set out by the various stakeholders. The CEMP due to its structure and nature will also require constant updating and revision throughout the construction period as set out below. Therefore this is a working document and will be developed further prior to and during construction. (emphasis added). (The Action Group submit that these two sentences purport to reserve to the developer a discretion so wide as to undermined any efficacy or force of Condition 5 - see paragraphs 778 et seq. below.)
Triggers for amendments to the CEMP will include:
ˇ When there is a perceived need to improve performance in an area of environmental impact
ˇ As a result of changes in environmental legislation applicable and relevant to the project
ˇ Where the outcomes from auditing establish a need for change
ˇ Where work method statements identify changes to a construction methodology to address high environmental risk; and
ˇ As a result of an incident or complaint occurring that necessitates an amendment.
This report provides the environmental management framework to be adhered to during the pre-commencement, construction and operational phases of the proposed development and it incorporates the mitigating principles to ensure that the work is carried out in a way that minimises the potential for any environmental impacts to occur. This report has been prepared in accordance with the mitigation measures and commitments made in the EIS/EIAR, assessment of proposed replanting and appropriate assessment screening reports (AASR), Natura impact statement (NIS) and other planning documents for the development."
767. The CEMP includes chapters dedicated to details of the site and project, construction management, environmental management, plans relating to site drainage, tree felling, peat stability, archaeology and management plans, invasive species management plans, waste management plans, construction traffic management plan, site reinstatement plan and a decommissioning plan, and plans relating to refuelling, fuel and hazardous material storage, dust control and air quality and noise and vibration control.
768. A section dedicated to implementation describes the roles and responsibilities of the Windfarm Construction Manager and Site Supervisor, an Environmental Manager, Project Ecologist, Project Hydrologist, Project Archaeologist, Project Geotechnical Engineer/Geologist and the establishment of what is referred to as an Interactions Management Group. The Interactions Management Group will comprise the developer's Construction and Operations Project Manager, the Main Contractor's Construction Manager and Site Environmental Manager and the operations manager or site supervisor from each of the commercial peat extraction companies operating at the site. The Interactions Management Group will be established prior to commencement of works and will continue for the duration of the lifetime of the project, but the developer Coole Windfarm Limited will have control over the construction operation and maintenance of the windfarm for the lifetime of the project including its drainage system and any surface water discharges. (Interaction with the commercial peat operator is controversial under a different Ground, considered at Part 12(16) below).
769. The implementation section has sections dedicated to water quality and monitoring, environmental awareness and training.
770. There are chapters dedicated to an Emergency Response Plan, a Safety and Health Management Plan, Mitigation and Monitoring Proposals, a Programme of Works and a section dedicated to Compliance and Review.
771. The appendices include a procedure for public complaints, water course crossing methodologies, a method statement for junction accommodation/road widening at Boharquill and at Joanstown, a site drainage plan, best practise management guidelines for the control of invasive species and the Inland Fisheries Ireland Biosecurity Protocol for field survey work.
772. The Action Group complain that the introductory language which describes this as a "working document" which will develop prior to and during construction means that this document cannot be relied on as a definitive roadmap for the works. It submits that it reserves to the developer a discretion which is unacceptable and inappropriate and contributes to the uncertainty which the Action Group claim renders the conditions which refer to this plan, notably condition no. 5, void for uncertainty.
773. The CEMP is an integral part of the EIAR.
774. The CEMP and other plans such as a Peat Management Plan are referenced repeatedly through the Inspector's report both in respect of the EIA (at 7.3.5.13, 7.3.5.15, 7.3.5.23, 7.3.5.26, 7.3.5.39) and in the context of AA (7.3.6.47, 7.4.9.3, 7.4.9.4).
775. Condition 5:
"Prior to commencement of the development, a detailed environmental management plan for the construction and operational stages shall be submitted to and agreed in writing with the planning authority, generally in accordance with the proposals set out in the EIAR. The environmental management plan shall incorporate the following:
(a) a detailed plan for the construction phase incorporating, inter alia, construction programme, supervisory measures, noise management measures, construction hours and the management of construction waste
(b) a comprehensive programme for the implementation of all monitoring commitments made in the application and supporting documentation during the construction and operation period
(c) proposals in relation to public information and communication.
A record of daily checks that the works are being undertaken accordance with the Construction Management Plan shall be kept for inspection by the planning authority".
776. It was entirely within the expertise and authority of the Inspector and the Board to stipulate as a condition of the permission adherence to a Construction and Environmental Management Plan which would evolve and develop after the consent to the project had been granted and after works had commenced. Any modifications or deviations from the plan submitted in the EIAR still have to be submitted and agreed in writing with the planning authority. Condition 5 requires also the maintenance of a record of daily checks to be available for inspection by the planning authority.
777. I do not accept the submission that the CEMP, including its references to being "a working document which will be developed further prior to and during construction" had the effect of conferring on the developer any form of discretion which would not be supervised by the planning authority, and within the parameters of the decision of the Board. On the contrary, were such a document not to be a "working", or "living" document, it would be faulted for not leaving capacity to respond to developments or necessary changes in the detail of the project. It was within the authority of the Board to approve a condition which would operate by reference to it.
778. Such a condition was expressly approved by McDonald J. in Sliabh Luachra Against Ballydesmond Windfarm Committee v An Bord Pleanála and Others [2019] IEHC 888:-
"If condition 16 were to be read on its own, one might form the impression that the respondent had left over for future determination the details of the CEMP relating to the method statements for construction, the location of the site and material compound and the other elements of the construction required for the development to be carried. One might also get a similar impression from what is said by the Inspector at p.p. 89-90 of his report where he speaks of the proposal to prepare a detailed CEMP and a construction stage surface water management plan. However, condition 16 and the relevant section of the Inspector's report must both be read in context. In particular, they must be read in the context of condition 2 and the detailed mitigation measures which are required to be put in place as a condition of the grant of permission. Under condition 2, Silverbirch (the developer) is required to implement all of the environmental, construction and ecological mitigation measures set out in the EIS, the NIS and the other particulars furnished in the course of the planning appeal process including Dr. O'Connor's report. These include, insofar as condition 16 is concerned, all of the material set out in Chapter 2 of the EIS dealing with the construction of turbine foundations, associated crane hardstanding areas, drainage infrastructure, borrow pits/repositories, windfarm entrances and access roads which are described at p.p. 657-662 of the EIS. They also include the detail in relation to construction materials, tree felling, forestry replanting works, site establishment (including temporary site facilities and access) at p.p. 678-679 of the EIS. In addition, further details are given in relation to crane hardstanding area construction, turbine foundation construction and drainage construction and borrow pits at p.p. 680-683 of the EIS. Thus, it is clear that the matters listed in condition 16 are already addressed in detail in the material which must be read with condition 16. The CEMP required under condition 16 is necessary so that the local planning authority will be in a position to maintain oversight and control during the construction phase. As counsel for the respondent said, in the course of oral submissions, condition 16 is not, as contended by the applicant, a licence to agree terms and conditions in the future. It must be seen against the framework of what has been already been addressed in detail in the EIS."
779. McDonald J. went on to consider other conditions, again referring to the much repeated conditions requiring that details be submitted to and agreed with the planning authority before the commencement of works. He observed that the purpose of such conditions is to ensure that the local planning authority will be in a position to oversee and monitor the carrying out of the works. He found the conditions and the mitigation measures to be detailed and impressive and he did not believe that any of them could be dismissed as being merely "generic".
780. In Holohan v An Bord Pleanála and Others case C-461/17 the CJEU was required to consider whether Article of 6.3 of the Habitats Directive permits the planning authority to grant a consent which leaves for later decision the determination of certain parameters relating to the construction phase, such as the location of the construction compound and haul routes, and if so whether those parameters may, at that later stage, be determined unilaterally by the developer and merely notified to that authority.
781. In its conclusion on this question the CJEU had the following to say:-
"The competent authority is permitted to grant to a plan or project development consent which leaves the developer free to determine later certain parameters relating to the construction phase, such as the location of the construction compound and haul routes, only if that authority is certain that the development consent granted establishes conditions that are strict enough to guarantee that those parameters will not adversely affect the integrity of the site."
782. Clearly an authority must have that certainty if it is to conclude as required by Art 6.3 that the project will not affect the integrity of a designated site. But the permission in this case did not leave any substantive matters to the discretion of the developer.
783. The Action Group submit that (a) the phrase "generally in accordance with the proposals set out in the environmental impact assessment report" is imprecise, and (b) that the condition refers variously to "a detailed environmental management plan", an "environmental management plan" and a "Construction Management Plan".
784. Some potential for confusion is introduced by the reference in one condition to an Environmental Management Plan for the construction and operational stages and later what is described simply as a "Construction Management Plan". The Action Group say that a query may arise as to whether the Construction and Environmental Management Plan referenced throughout the EIAR and the NIS is the same plan required by condition no. 5.
785. I am not persuaded that there is in fact any confusion on this subject. There can be no doubt that the Inspector was referring to the extensive Construction and Environmental Management Plan which accompanied the EIAR, and the effect of condition 5 is to incorporate into the Board's decision a requirement to keep that plan and its implementation under review, up to date and to ensure it is adhered to.
786. It was also submitted that an opening for excessive latitude is created by the phrase "generally in accordance with the proposals set out in the environmental impact assessment report" which appears in condition 5 in the following section:-
"Prior to commencement of development a detailed Environmental Management Plan for the construction and operational stages shall be submitted to and agreed in writing with the planning authority, generally in accordance with the proposals sets out in the Environmental Impact Assessment Report."
787. The submission goes that the use of the phrase "generally in accordance with the proposals in the EIAR", carries with it a degree of a latitude which creates of itself uncertainty. It is clear from the Inspector's Report that he paid careful attention to the entirety of the EIAR and concluded that it was sufficiently prescriptive as to the specification, dimensions and other features of the project, including construction methods, as to confine any subsequent discussion between the planning authority and the developer within the parameters of the EIAR which has been so extensively examined by the Inspector in this report, and to leave room only for matters of detail. That finding and recommendation to the Board was all within the scope of their competence and jurisdiction.
788. I have quoted all of the other Conditions in Part Ten of this judgment. The claims of the Action Group may be summarised as claims that (a) they are void for uncertainty, (b) that matters have been left over for agreement between the developer and the planning authority which are more than matters of detail and therefore constitute an improper abrogation of the Board's decision making authority and (c) the allegation that the public are deprived of the opportunity to participate in any further process by which matters identified in the conditions would be determined. Before stating my conclusion on those grounds, it is useful to refer to a number of those other conditions.
789. Condition no. 6 relates to landscaping and biodiversity and requires the submission of a planting plan and schedule. This condition identifies seven areas which need to be addressed in the planting plan and schedule. These extend from such matters as existing and proposed ground levels, description of existing areas of tree cover and landscaping features, vegetation to be maintained, measures to enable maintenance of the hedgerow and tree line along local routes, fencing and gates, soft and hard landscaping works, reinstatement works, biodiversity enhancement proposals and a programme for the timing, method of implementation and completion of ongoing maintenance.
790. The condition requires that all landscaping works must be carried out in accordance with a scheme approved by the planning authority.
791. Within this condition there is scope for variations in terms of the treatment of vegetation and landscaping. However, some of these features are not structures and in themselves may not constitute development. They are stated to be driven by the need to ensure the maintenance of biodiversity and the preservation of appropriate habitats at the development site. They are imposed as conditions in the interests of visual amenity and to integrate the development into its surroundings.
792. Condition 7 specifies the design requirements for turbines. Condition 9 identifies parameters for acceptable levels of noise. Condition 10 applies limits in relation to shadow flicker. In each of these cases there is again a requirement to submit to the planning authority compliance monitoring programmes and the authority may request further reports at reasonable intervals.
793. Condition 13 relates to roads and bridges. It provides for the presentation of a Transport Management Plan and specifies the details which must be included in that plan including condition surveys before and after works and arrangements for the rectification of any construction damage.
794. Condition 14 which relates to archaeology imposes obligations on the developer regarding notification to the relevant authority of certain works prior to commencement of any site operation and the obligation to employ a suitably qualified archaeologist on the project.
795. The principles in O'Keefe, Klohn and other cases apply as much to the conditions to the Board's decision as to the decision itself. I do not find that there was no rational basis for the imposition of any of the conditions of which the Action Group complains. This court cannot 'second guess' the evaluation of the merits of the assessment undertaken by the Inspector and the Board, and its decision to condition the permission in the manner it did, including the conditions which provide for agreement on detail between the developer and the planning authority.
796. As regards the conditions themselves, the following are my conclusions.
797. Firstly, there is no prohibition on the Board deciding that matters of detail can be submitted to subsequent agreement between the developer and the planning authority (Boland).
798. Secondly, whether a matter so delegated to the planning authority is truly a matter of detail is a question specific to each case and to the analysis of the relevant condition. Such matters as the final specification of individual drains are clearly appropriate for such subsequent agreement (People Over Wind, Sliabh Luachra).
799. Thirdly, to require that the minutiae of turbine design and specification be finalised before the developer applies for planning permission would eliminate the scope for necessary updating of turbines by reference to evolving technology and to enable the technology and design respond to a changing environment. (People Over Wind).
800. Fourthly, the extent of the detail contained in the developer's application documents, including the EIAR, is such that the condition requiring the development to be contracted in accordance with the Plans and Specifications submitted (Condition 1), and requiring that mitigation measures and monitoring commitments in the EIAR and other reports submitted (Condition 4), when taken with the requirement that detail of the Construction and Environmental Management Plan and other details be first approved in writing by the planning authority (Condition 5), is such that none of the conditions are void for uncertainty.
801. Fifthly, although the process for subsequent agreement between the developer and the planning authority does not provide for a further round of public participation, the requirement for publication and public participation was met in relation to the fundamentals of the Board's assessment and its stipulation of conditions, apart from the all important absence of public notification of EIA of the grid connection, considered in Part 12(6).
802. Sixthly, conditions the compliance with which require the consent of third party landowners, notably those associated with the grid connection, as incorporated by mitigation measures identified in the EIAR, do not have the effect of burdening those lands. Unless the developer secures agreement of relevant landowners the project cannot be constructed as approved.
803. The report of the Inspector, the decision of the Board and the conditions attached thereto all demonstrate that care was taken by the Inspector and by the Board to identify areas of concern, including issues brought to their attention in observations, and to impose appropriate conditions, compliance with which will, where the Board deemed it necessary, be directly supervised and require the prior agreement of the planning authority.
804. The Action Group claim that the proposed development forms part of a larger project which was the subject matter of an earlier separate application before the Board known as the "Greenwire project", said to be operated and managed by the third and fourth named notice parties, namely the developer in this case and Greenwire Limited. The Greenwire project provided for a series of wind farms stretching from the lands the subject matter of this application through lands stretching north into the Carlinstown/Kells area of County Meath. They claim that the agreements with landowners relied on in this case were included in the wider plans of Greenwire for this and other windfarms, and that the EIAR failed to identify the likely significant effects both direct and indirect of this project together with other windfarms in the Greenwire project.
805. The Action Group claim (Ground E20) that the Board erred in law and acted contrary to the Directive in failing to consider the overall development strategy proposed by the developer and/or its parent company in circumstances where the Board should have been aware in light of the application before it that the development is part of a larger project.
806. In the affidavit of Caroline Pilkington, Secretary of the Action Group, sworn on 20 May 2019, she states that she believes that the developer Coole Windfarm Limited and Greenwire Limited are intimately connected corporate entities and that the planning application made in this case is for a windfarm project which is not an independently considered or planned project but forms part of a much larger wind energy project described as the Greenwire project which comprises up to 40 windfarms through the Irish midlands.
807. In support of this assertion, Ms. Pilkington exhibited three documents. The first is a screenshot extract from the website of the Board referring to a pre application consultation bearing reference PC0148 by Element Power Limited for "proposed Greenwire project comprising over 40 windfarms, cable connector systems and convertor station, and underground cables to two grid connection points in Wales. Counties Kildare Laois." Parties to the consultation are named as Element Power Ireland Limited, the prospective applicant, and the local authorities of Kildare, Laois, Offaly, Meath, Westmeath, Dublin City, South Dublin, Dun Laoghaire-Rathdown, Fingal, Carlow and Wexford.
808. The screenshot relied on refers to an application for pre application consultation which was lodged on 16 July 2012 and records that the consultation had yet to be concluded.
809. The second document exhibited by Ms. Pilkington is a decision issued on 28 August 2018 by the Commissioner for Environmental Information in case CEI/17/0031 on an appeal from a decision of the Board to refuse a request by a Ms. Fand Cooney for inspection of a pre application consultation file for a proposed strategic infrastructure development made to the Board relating to the export of wind energy.
810. The Commissioner for Environmental Information granted the appeal of Ms. Cooney against the Board's refusal to grant access to the file, subject to certain exclusions in relation to such matters as invalid observations and personal information of Board staff. The important aspect of this decision in the context of this case is the description in the first paragraph of the decision of the Commissioner headed "Background" which states as follows:-
"The Greenwire Project is a wind energy project aimed at constructing wind farms in Ireland to supply energy to the U.K. In July 2012 Element Power Limited (EP) entered into a pre application consultation with ABP on the 'proposed Greenwire project comprising over 40 windfarms, cable connector system and convertor station, and underground cables to two grid connection points in Wales'. The counties (and local authorities) listed were Kildare, Laois, Offaly, Meath, Westmeath, Carlow, Wexford, South Dublin, Dun Laoghaire-Rathdown and Fingal. At the time of this decision the ABP website states that this consultation has yet to be concluded."
811. The third document exhibited by Ms. Pilkington is an extract, which she states is dated 19 April 2018 from EirGrid's Offer Process Transmission Connection Applicant List. One of the items appearing in the list under reference TG232 is an application by Greenwire Limited received on 9 September 2011. The location referenced is "Offaly Laois Meath Westmeath Kildare". The type concerned is described as "wind". The status of the application on that extract is described as "on hold" and no station has been assigned.
812. Ms. Pilkington says that she believes that these documents show that the third named notice party in this case, Greenwire Limited is an active party to a pre application consultation and that the referenced application to EirGrid for a grid connection is for a single project comprised of a number of windfarms in the listed counties.
813. Ms. Pilkington says that the developer in this case has no interest in the lands the subject of the proposed wind turbines and cannot fulfil the minimum requirement in relation to ownership which is a condition precedent to the making of a valid application. She then makes the connection that if the developer in this case has such an interest it can only be established by relying on agreements relating to the land which had been entered into by Greenwire and which themselves relate to a larger and more extensive development of which this proposed windfarm forms a subset.
814. Ms. Pilkington says that no consideration of this question was carried out by the Board or its Inspector and she believes that the locations identified for the turbines in this case are the same or at least not materially different from those contained in the Greenwire plan and that the design of the turbines are similar. She infers that "the development as permitted could just as well form a subset of the much larger development the subject of discussions with An Bord Pleanála".
815. In her affidavit sworn on 1 October 2019 Claire Walsh, the Project Manager for the developer states that the proposed Coole Wind Farm is a standalone project, is not part of or in any way dependent on the Greenwire project. She says that the materials exhibited by Ms. Pilkington are not relevant to the application the subject of these proceedings.
816. In a supplemental affidavit sworn on 21 January 2020 Ms. Pilkington contradicts this and asserts that the documents relevant to the application by the developer show that the landowner agreements obtained in respect of the location of the proposed wind turbines were secured not by the developer but by Greenwire and therefore must be, on her description, part of an agreement between Greenwire and the developer in respect of this project.
817. Ms. Pilkington acknowledges that there may be other explanations for this connection but complains that the Board did not investigate this question, even though it would have full plans and particulars of the Greenwire project at its own office. She asserts that the only reason why the developer in this case is "concealing its relationship with Greenwire" and the other details of the application made to the Board is that documents if made available would demonstrate that the proposed Coole wind farm is a phase of the Greenwire project.
818. The Greenwire project is referenced in para. 7.5.2.1 of the Inspector's report where he states the following:-
"Project splitting arises where an overall project is split into different components in order to circumvent the requirement to carry out EIA, as each component of the project would be compartmentalised to fall below the threshold for which EIA would be required. The development is brought forward as a standalone project and does not set out, in any manner, a framework for the future development consent of other projects, including the Greenwire project referenced by some observers. The EIA Directive does not preclude projects from being subject to separate decisions provided that all the impacts have been properly assessed. In this instance, due consideration has been given to the adjoining land uses, including the peat extraction as part of the cumulative impacts, if any, and where appropriate the EIAR also assesses the potential significant environmental impact which could arise from existing and other permitted developments in the area. I have referred to the cumulative impacts throughout my assessment."
819. In s. 2.4.1 of the EIAR reference is made to the Greenwire project and the following is stated:-
"The Coole windfarm was originally identified as part of the Greenwire wind energy export project. Based on the current need for further domestic wind energy developments in Ireland the project is now proposed for connection to the Irish grid system."
820. This is an important aspect of the description. It is acknowledged that the Greenwire project formed part of a proposal whereby windfarms would be connected to a substation in Wales to supply Britain. Paragraph 2.4.1 of the EIAR above makes it very clear that this application and the proposed Coole windfarm is no longer part of that project, but is separately intended for connection to the Irish grid system.
821. It is significant that the EIAR confirms and does not conceal that the Coole windfarm was originally intended to form part of the Greenwire project but is now a separate project. The Inspector was aware of and recorded the submission of observers on this subject and decided that this was a standalone project.
822. The essence of the submission by the Action Group is that in circumstances where the Board were on notice of the existence of the Greenwire project and had on its own files information regarding a strategic infrastructure development consultation concerning that project the connection between this windfarm and the remaining other windfarms in the Greenwire project ought to have been investigated, leading if necessary to an assessment of the cumulative effects taking into account not only this project but also the potential 40 other wind farms in "Greenwire". It submits that the decision of Element Power and the developer, made at some earlier date not specified, to connect the Coole windfarm to the Irish grid system and not include it in the proposed connection for export to Britain is not sufficient to "separate it" from the Greenwire project as a whole. The submission continues that equipped with such information as the Board had on its own files it ought to have undertaken a more detailed analysis and produced a reasoned analysis in the Inspector's report and not what the Action Group describe as a cursory dismissal of the issue.
823. The Board and the developer submit that the obligation under the EIA Directive is to assess cumulative effects of the proposed development with existing and other approved projects (see Annex (III) para. 1(b) and 3(g) of the Directive). They say that there is no legal obligation to assess the effects of the proposed project with potential future development which has not yet reached the stage of being formalised into a planning application or consent. It is also submitted that it would in any event be impossible to carry out an EIA of such an "inchoate future development" because the information necessary to do so, including location and characteristics of the other developments, were not known at time when this application was made and when the Board was considering it.
824. In Fitzpatrick v An Bord Pleanála and Others [2019] IESC 23 an application was made for permission to construct one data centre, associated works, a substation and grid connection. The data centre and associated works were to be constructed on part of a 202 hectare site owned by the developer, Apple Distribution International. Apple had stated that it was envisaged that seven more data halls would potentially be constructed on the same site in the future.
825. Objectors submitted that the masterplan, including the remaining seven data halls was in fact the "project" for the purpose of the EIA Directive and not merely the single data centre which was the subject of the planning application. This contention was rejected by the High Court and the decision was upheld by the Supreme Court.
826. There had been submitted planning applications relating to the first data centre and ancillary infrastructure. A separate application had been lodged in respect of an electricity substation which was being designed to serve not only the first data hall the subject of the current application but also the further seven data halls which would be the subject of future applications.
827. The environmental impacts of the proposed first data hall, the substation and grid connection all formed part of the assessment performed by the Board. The Board had taken into account the fact that when the developer chose the site, it did so because the location would have the capacity for a further seven data halls in the future. The court did not consider that this constituted impermissible project splitting or "slicing". The court found that the first data centre was a standalone project in the sense that it was not functionally dependent on future phases of the master plan.
828. Finlay Geoghegan J. concluded as follows:-
"notwithstanding that the data centre application is the first phase of an overall masterplan, it was permissible to treat it as a standalone project or development both for planning purposes and for the assessment under the EIA Directive, as it was not functionally or legally dependent on later phases of the masterplan." This of course contrasts with the functional, economic and legal interdependence between a windfarm and its grid connection identified by Peart J. in O'Grianna.
829. When it came to considering the validity of the environmental impact assessment in that case the court noted that the Inspector had carried out his assessment of the proposed development taking account as far was practicably possible of the proposed build out of a further seven data halls and the potential impact of such future builds on energy uses and climate change.
830. The substation which formed part of the planning application in Fitzpatrick and which was subjected to the EIA was intended to serve not only the first data hall which was the subject of the current planning application but to serve the further seven data halls which were envisaged under the masterplan and would be constructed in the future at the same site. That did not mean that an assessment had to be made of the impacts of the future data halls which were not yet permitted or applied for.
831. In this case no connection has been shown between the proposed Coole windfarm and the ancillary works associated with it and any other windfarms which might or might not form part of the Greenwire project over a period of time in the future, other than the possibility that the group of companies of which the developer was a subsidiary might apply for other windfarms.
832. In Ratheniska Timahoe and Spink (RTS) Substation Action Group and Anor v An Bord Pleanála and Anor [2015] IEHC 18 Haughton J. made it clear that the obligation to assess cumulative effects related to the project under scrutiny for EIA and other existing and/or approved projects.
833. In this case there was no evidence before the Inspector that there were other existing or approved projects which required to be assessed for cumulative effects with this project. The evidence of Ms. Pilkington is that Element Power sought to open consultations in relation to a potential strategic infrastructure development relating to a series of windfarms at other locations, which were intended to be connected to cables exporting to the United Kingdom. It is clear from the reference to the change of strategy in the EIAR which I have quoted earlier that the Coole windfarm had become a standalone project, the construction, development and operation of which was, as Ms. Walsh has sworn, a standalone project.
834. The Statement of Grounds does not identify what other proposed windfarm projects ought to have been cumulatively assessed with the Coole windfarm. The description given in grounds 19 and 20 is of "a series of wind turbines stretching from the lands the subject of this application through a series of interrelated land areas stretching north into Carlinstown/Kells area of County Meath". In her affidavit sworn on 20 May 2019 Ms. Pilkington refers to "a much larger wind energy project described as the Greenwire project which comprises up to 40 windfarms throughout the Irish midlands" and she then refers to the various documents exhibited by her. The high point of Ms. Pilkington's evidence in relation to the Greenwire project is that Element Power sought to engage in pre SID consultations regarding a series of other windfarms. The Inspector was acting within the scope of his expertise and competence in reaching his conclusion that the project the subject of this application was a standalone project and therefore that there was no necessity to perform an assessment of cumulative effects with up to 40 other unidentified windfarms spread over many counties.
835. The only other existing wind energy developments within 20 kilometres of the turbine site is a single turbine 16 kilometres to the northeast at Ballyjamesduff, County Cavan.
836. It has to be said that the treatment of this subject in the Inspector's report at 7.5.2.1 is brief. However, I am not persuaded that there was before the Board sufficient information as to other permitted or applied for projects to demonstrate that this project was part of a live or ongoing application of the character described by the Action Group. Nor did the Board err in failing to investigate this question further.
837. At the time of the developer's application certain commercial peat extraction works and associated works were ongoing at two separate parts of the site. The first was operated by Bulrush Horticulture Limited at Camagh Bog, the intended location of four of the turbines.
838. The second was operated by Westland Horticulture Limited at a location near Coole Village, the intended location of the link road between the regional roads R395 and R396.
839. The court was informed at the hearing of these proceedings that this work was no longer continuing. However, these works were ongoing when the developer first made its application and at the time when the Inspector made his report and the Board made its decision. It is also clear from numerous references in the EIAR that the developer and the Board each anticipated that such works would continue.
840. The Inspector recites (7.3.5.1) that parts of the turbine site had been used for peat harvesting since at least the 1940's and that during the 1950's peat was harvested for turf supply to Dublin. In a judgment of Meenan J. relating to this subject, to which I refer below, reference is made to the works at Camagh Bog having begun as early as 1983, and it is recorded that a milled peat production facility was operated at Camagh Bog since 2003. In the same judgment it is said that in relation to the lands near Coole, peat extraction operations on a commercial scale have been undertaken since 1999, and in one section since 1993.
841. On 14 November 2011 Friends of the Irish Environment sought from Westmeath County Council a declaration pursuant to s. 5 of the Act as to whether the drainage of bog lands, peat extraction, accesses from public roads, peat handling activities and other associated activities and works is or is not development and is or is not exempted development. This was a reference to the works at Camagh Bog by Bulrush Horticulture Limited.
842. A similar request was made in relation to works carried out at the lands at Coole, by Westland Horticulture Limited.
843. Westmeath County Council remitted these requests to the Board for determination and on 15 April 2013 the Board issued determinations in the following terms:
"The drainage of boglands, peat extraction, accesses from public road, peat handling activities and other associated activities and works at (Camagh Bog and Coole respectively) are development and were exempted development until the 20th day of September 2012, after which it is development and not exempted development."
844. Bulrush and Westland sought to quash these determinations by way of judicial review and on 8 February 2018 this Court (Meenan J.) refused that relief (2018 IEHC 58).
845. The Action Group claim (Ground E28, 29 and 30) that the Board erred in law and acted contrary to its obligations under the EIA Directive and the Act of 2000 in accepting an application "in respect of lands which were the subject matter of an unauthorised development both in terms of use and in terms of structures and could not and should not have accepted an application in circumstances where the unauthorised development had not been resolved".
846. The Action Group claim that part of the lands the subject of the application are subject to existing commercial peat extraction which activity was the subject matter of the s. 5 referral decisions that peat extraction was only exempted until 20 September 2012.
847. The claim continues that the areas already extracted constitute "a structure" for the purposes of the Act and that the Board was precluded from considering the developer's application in respect of lands which were the subject matter of an unauthorised development both in terms of use and in terms of structure.
848. The Inspector identified in para. 7.3.5.1 and 7.3.5.5 that the link road would traverse certain commercial peatlands and that the turbine site is undergoing active peat harvesting and that these activities amount to development which is not exempted development having regard to the s. 5 determinations.
849. The Board and the developer cite the fact that the Inspector addressed the position in relation to commercial peat extraction. They say that the proposed windfarm development is not connected to or interdependent with the commercial peat extraction operations of third parties and that the lawfulness of those activities was not a relevant factor for the purpose of the application.
850. The Board and the developer submit that the obligation on the Board was to consider the cumulative impacts of the proposed windfarm development with any ongoing peat extraction activity at the site, which it did.
851. The developer says that it is a stranger to the commercial peat extraction activity and denies that the excavated peatlands constitute a structure.
852. It is clear that, even taking the dates referred to in the judgment of Meenan J., commercial peat extraction works have been ongoing at the site for 20 if not 30 years before 20 September 2012 and continued thereafter. So much of that activity or work as postdated 20 September 2012 was development and not exempted development, per Meenan J.
853. The EIAR and its appendices contain numerous references to the "ongoing peat extraction activities". In chapter 1 which describes the project generally reference is made to an Interactions Management Group which would interface with the operators of the commercial peat extraction activities. The report states at chapter 1.3.1:
"There are currently peat extraction activities ongoing at the proposed development site. In order to ensure adequate interaction between the ongoing peat activities and the construction and operation of the windfarm at the proposed site an Interactions Management Group (IMG) will be set up. The key role of the IMG will be to establish an interface between the windfarm and peat activities at the proposed site. The set up of the IMG will allow for a coordinated approach in the management of site activities where there will be interactions between the two activities and to allow for the environmental management of all activities associated with the proposed windfarm including site drainage, ecology, archaeology, geology etc. The IMG will include the applicable Developers Construction/Operations Project Manager, the Main Contractors Construction Manager and Site Environmental Manager and the Operations Manager or Site Supervisor from each of the peat companies operating at the proposed development site. (Reference is made then to the Construction and Environmental Management Plan - described in Part 12(12) of this judgment).
Coole Windfarm Limited will have control over the construction, operation and maintenance of the windfarm development for the lifetime of the project including its drainage system and any surface water discharges. The IMG will be set up prior to construction commencement and will continue for the duration of the lifetime of the windfarm project.
Coole Windfarm Limited has secured the required consents of all the relevant landowners to carry out the proposed works. The consents obtained include those from the owners and operators of the existing peat extraction activities, and accordingly the Coole windfarm project can be carried out in conjunction with these ongoing activities."
854. The ongoing peat extraction activities are described in detail. The description refers to site drainage and the systems associated with peat harvesting, hydrogeology and impacts on landscape. References are made throughout the report to potential interactions between commercial peat extraction, as it was then anticipated to continue, and the proposed windfarm.
855. The EIAR notes potential and cumulative effects of peat extraction activities in conjunction with the windfarm activity under all of headings relevant to the EIAR, except for the archaeology section.
856. The Inspector refers to the commercial peat extraction activities in numerous places in his report.
857. In considering the planning history of the site the Inspector refers in s. 4.1.8 and 4.1.9 to the existence of the s. 5 referrals which I have summarised earlier. He also records in s. 6.2.1 the fact that a number of observers to the appeal have referred to the s. 5 determinations and the outcome of the judicial review which he notes led to "questions regarding the future use of these lands and how this would tie in with the proposed development."
858. The Inspector discusses the position regarding commercial peat extraction in detail. In 7.3.5.1 the Inspector states:-
"The EIAR outlines that the proposed turbine site has been in use for peat harvesting since at least the 1940's and that during the 1950's the peat was harvested for turf supply to Dublin. The borrow pit is in agricultural use, while the link road would traverse commercial peatland and agricultural lands. It is stated that the existing usage of the turbine site for commercial peat harvesting and commercial forestry would continue in conjunction with the proposed windfarm development, and to compensate for the loss of the 9.5 ha of trees to be felled, planting would take place off site. The existing drainage of bog, commercial peat extraction and handling, the creation of accesses from public roads and other associated works on lands including the main turbine site and the new link road site, which is to the west of Coole village were the subject of s. 5 referral cases adjudicated on by the Board in April 2013 (APB refs. PL25.RL2969 and PL25.RL2975) it was decided in both referrals that the works involved are development and were exempted development until the 20th day of September 2012, after which time the work would be development and would not be exempted development."
859. The Inspector refers to the Interactions Management Group and he concludes in 7.3.5.14 that "potential for cumulative effects with the ongoing peat operations would have potential to arise, but in this regard I note the detailed construction methods to be employed as part of the project and the peat management and monitoring features". He considers the potential for cumulative impacts in the context both of the construction phase (7.3.5.14) and in the operational stage (7.3.5.15).
860. In considering the potential visual impact of the project the Inspector states at 7.3.6.23:
"The proposal would have a significant visual impact from roads in the immediate vicinity and from residential properties therein, in locations where screening is not available or maintained. I submit that in view of the long established commercial peat extraction operations, that the landscape presents itself as a highly moderated working landscape that is relatively robust. The visual character of the wider landscape has changed and would change further as a consequence of the proposal and would not result in a material alteration or visual intrusion as to warrant a recommendation to refuse permission." (Emphasis added).
861. In the appropriate assessment and screening for appropriate assessment the Inspector refers to the ongoing peat extraction and commercial forestry activities. He observes at 7.4.6.14 that the existing turbine site is "dominated by commercial peatland and commercial forestry that would not provide ideal foraging or breeding habitat for this wetland bird (a reference in that case to the wigeon)".
862. The Inspector states at 7.4.9.2:
"The existing drainage control measures on the site for the commercial peat milling operations are to be maintained and the proposed development would include additional drainage control measures such as interceptor drains, collector drains, silt traps and settlement ponds."
863. There are two elements to this part of the case. The first is the ongoing peat extraction activity and related works. The second is the extent to which any of the structures in place at the time of the application and decision, which the Action Group say includes empty spaces formed by peat extraction, and which may be utilised by the developer are unauthorised structures. In essence it is the Action Group's claim that the developer's application was based upon a project which would be "engrafted" onto unauthorised structures, and that the Board had no jurisdiction to grant permission for such a project.
864. The decision of the Board does not authorise the continuance of commercial peat extraction or associated activities. It is the authorisation for the construction of a windfarm comprising thirteen turbines, the construction of access roads, a substation, a construction compound, a borrow pit and certain junction accommodation works.
865. In the application of the developer and the supporting EIAR and other reports, detailed descriptions are given of the method of intended construction of each of the structures, the dimensions of the structures, together with drawings illustrating their dimension specifications and construction methods. There are also numerous references to ongoing commercial peat extraction activities, but the application is not an application for the continuance of those works and the decision of the Board does not purport to authorise any such works. The references to these works are made in the context of assessing the cumulative effect of the windfarm project along with any such commercial peat extraction activity as may continue.
866. The detailed plans and specifications and drawings illustrate not only the form of the wind turbines to be erected but also describe the method of construction for foundations and hardstanding areas surrounding those turbines and for roads and drains.
867. The detailed and numerous references in the EIAR, and the Construction and Environmental Management Plan which refer to collaboration with the peat operators and the formation of the IMG were provided to demonstrate that there will be collaboration with any such activity as may be ongoing. But the Board's decision is not a permission for such activity to continue either on the part of the commercial peat operators or for that matter by the developer. This much is clear from s.34(13) of the Act, which provides: "A person shall not be entitled solely by reason of a permission under this section to carry out any development".
868. The developer and the Board submit that if there is to be any continuing peat extraction on the lands at the site then that will have to be regularised in due course by any party who seeks to resume such activity. It submits however that there is no legal obligation to refuse to consider the developer's application in respect of the windfarm merely because of a contention that there is or may in the future be unauthorised continuing peat activity.
869. It is submitted that the proposed development is not a continuation or extension of the peat extraction works and does not purport to "legalise those works in any way".
870. If any of the commercial peat extraction activities, as described in the s.5 decisions made by the Board, were to continue or resume then clearly an application for an appropriate planning permission would be required by the party seeking to do such works. The developer does not propose in the application to continue such works. The Board did not err by not refusing permission for the windfarm and associated works on this ground.
871. The position regarding the roads drains and underground excavations is different. The Action Group submit that insofar as the developer would use, even in part, roads drains or other aspects of the landscape which are the result of works undertaken by the commercial peat operators these are structures which are unauthorised and the Board erred in permitting the windfarm project to "engraft" onto such structures.
872. There has never been any determination that works carried out by commercial peat operators before 20 December 2012 were unauthorised. Therefore, no determination has been made that any structures which remain in place as a consequence of work undertaken prior to that date are unauthorised structures.
873. The Inspector was not requested or required to make any determination as to the status of structures resulting from the activities of the commercial peat operators. Nor was any evidence placed before him as to the state of the lands, roads and drains as of 20 December 2012, by contrast with their state on the date of the developer's application.
874. Ms Pilkington expands on this question in her supplemental affidavit sworn on 21 January 2020.
875. She says (para. 20):
"I say that the peat extraction of its nature amounts both to an unauthorised use in terms of the extraction activities and the creation of unauthorised structures in circumstances where a structure is defined as including an excavation and there are significant areas of excavation across the site. Therefore the entire development is predicated on it being located within and between unauthorised structures and indeed the typography and profile of the land is a function of this unauthorised development. The character of the location is to a large extent determined by this activity. In lodging the application within this area as if the land and structures and use was authorised and in seeking to obtain permission for the development without seeking any application to retain what has been constructed in breach of the Planning Acts and in breach of the Environmental Impact Assessment Directive the Notice Party has sought to rely on this unauthorised development in the manner as formulated in the proposal. Indeed the unauthorised peat extraction that has already been carried out is of considerable assistance to the notice party because it will be necessary to excavate the entire peat resources in the area where the turbines are to be constructed and in the area where the roads and other infrastructure are to be provided".
876. There was before the Board no application pursuant to s.34(12) for retention of any structure on the site. Nor was the developer obliged to apply for retention in respect of any works of the commercial peat operators.
877. The Action Group's claim rests upon the proposition that any existing bog roads or drains resulting from the activities of the commercial peat operators and which might be used even partially by the developer are unauthorised structures. In the absence of proof as to whether those roads or drains in place at the time of the application were constructed or improved after 20 September 2012, there was no basis for the Inspector, even if he had been requested to do so or had authority to do so, to declare such structures to be unauthorised. It is of course likely that some such works occurred between 20 September 2012 and the date of the developer's application, but the Inspector cannot have been expected to make any presumption, let alone finding, as to the extent, if any of such works.
878. The Action Group say that excavation works for peat extraction were continuing up to and including the time when the developer applied for permission, and the Board's decision was made. The Action Group seeks to categorise as an "unauthorised structure" the space or vacuum which remains after peat extraction has been carried out, and that the resulting "hole in the ground", must be an unauthorised structure which required permission in and of itself, independently of any permission required for the peat extraction itself.
879. The terms "works" as defined in s.2(1) of the Act includes any act or operation of construction, "excavation", demolition or otherwise and it is submitted that every excavated cavity or hole in the ground at the turbine site must be an unauthorised structure. This submission is based on the "rolling" proposition that because peat extraction works continued after 20 September 2012 the 'holes in the ground' are an unauthorised structure on to which the developer's project would be engrafted. This argument seeks to place on the Inspector and the Board an obligation to conduct, of its own volition, an enquiry as to the state of the ground in each part of the site in which any commercial peat extraction activities were undertaken since 20 September 2012 and then to consider whether the developer's proposed works were "interdependent on" or "engrafted" onto those unauthorised structures.
880. Again it is appropriate to restate the test in O'Keeffe v An Bord Pleanála & Ors. The question is whether the decision of the Board on this subject was so irrational that this court should intervene. The Inspector had before him evidence of the S.5 referrals made by Friends of the Irish Environment and the determinations made by the Board in April 2013. However, those determinations related only to works undertaken by the commercial peat extraction operators and were not a definitive description as to the state of the land when the developer applied for planning permission by comparison with its state on 20 September 2012.
881. Were the Inspector to have disregarded the information as to ongoing peat extraction activity he would have been correctly faulted for failure to perform an assessment of the cumulative impacts of that activity with the proposed development. That is not the same as an obligation to investigate the state of the land and any structures thereon by comparison with their state eight years earlier.
882. Cleary Compost concerned an application for planning permission for an extension to a composting facility. The applicant proposed to add an additional enclosed area for the preparation and storage of horticultural and agricultural compost soil conditioners and the stabilisation of organic materials. The application proposed that an existing limit of 10,000 tons of material per annum would be increased. Modifications were sought in relation to an existing building and new works to boundary fencing, drainages, a wastewater system, parking and traffic controls. Kildare County Council refused planning permission for the extension and modifications of the facility and the Board confirmed that refusal.
883. The site had a history of referrals and declarations pursuant to s. 5 of the Act. In 2009, 2010 and 2011 the planning authority had declared that the then activity of importation, processing, storage and composting of green waste was not development.
884. Following subsequent referrals by a third party the Board made determinations in 2013 and 2014, finding that by reason of significant intensification of the activity and a change in the nature of the activity at the site there had occurred a change of use from agriculture to a waste related research and development process and that this change was material in planning terms and was therefore development. It was also determined that the activity was not exempt, as it required an EIA and AA having regard to its proximity to a special area of conservation.
885. When the landowner later applied to Kildare County Council for planning permission for the extension and modification of the facility the application was refused. An appeal was dismissed by the Board pursuant to s. 138 of the Act, having regard to previous decisions as to the status of the activity on the site.
886. The reason stated by the Board in its decision was as follows:
"The subject application is for development comprising the extension of an existing composting facility. It has already been decided by An Bord Pleanála that:
(a) The existing composting facility is a waste management facility which does not have the benefit of planning permission nor does it benefit from any exemptions from the requirement for planning permission under the Planning and Development Acts 2000 - 2014 or Regulations made thereunder.
(b) The existing composting facility is a development which requires an environmental impact assessment and appropriate assessment to be carried out."
887. A central feature of the decision in that case was that the application was for permission for an extension of an existing facility, the Board having earlier determined that the existing facility was development and was not exempt.
888. In refusing to quash the decision of the Board Baker J. stated the following:
"The Board could not lawfully ignore its previous recent determinations and refused to grant planning permission as to do so would permit an impermissible graft upon a facility which it had previously determined required planning permission and environmental assessment."
889. The essence of this decision was a finding that what was sought in the planning application was an extension and expansion of an existing facility by the same applicant which had been definitively found to be unauthorised. This is what was meant by an "impermissible graft".
890. Baker J. said the following:
"I consider that the Board was competent to decide on the evidence before it that, having regard to its own previous decisions, including decisions under s. 5, that development had taken place on the site, and that that development was not exempt, that in the absence of an extant planning permission it ought not to give further consideration to an extension application as what was sought was an extension of activities which did not have the benefit of planning permission, or which were not authorised."
891. By contrast the application in this case relates to the construction of a new windfarm and ancillary works, not an extension of the commercial peat extraction activities undertaken by third parties, Bulrush and Westland. In Cleary Compost the application was made by the same original developer and was for an extension and expansion of its existing activity, hence its description by the court as an "impermissible graft".
892. The Board and the notice party rely on the judgment of Feeney J. in Murphy. In that case the Board granted planning permission for development of a premises comprising firstly, a partial change of use and conversion of a house and secondly an extension of a domestic store and a first floor café at Allihies, Beara, County Cork. The premises was part of a group of buildings and the objector contended that part of the original construction on the site was illegal and that the proposed new development incorporated the use of an illegal ground floor extension as support for the proposed new second story. The court was asked to consider whether it can be correct in law for the Board to permit a development where it would involve the Board condoning or facilitating an unlawful development.
893. There had been no prior determination as to whether the extension to the existing single store dwelling was or was not an exempted development. There was therefore a dispute as to whether the proposed new development incorporated or relied on an unauthorised development.
894. Feeney J. said that the Board is prohibited by law from assuming that a person who is in receipt of a grant of planning permission will act illegally. He said that the Board cannot proceed on the basis that if permission is granted anything illegal would be done on foot of that grant. Nor can it be said that the grant of permission in any case can be said to have authorised a developer to commit an act which would otherwise be unlawful.
895. As in Cleary Compost, the landowner seeking the planning permission was also the developer of the original extension which was said to have been unauthorised.
896. Feeney J. had the following to say:
"The first named notice party, the developer, has a planning permission and he, as the developer, is obliged to act legally on foot of such planning permission. An Bord Pleanála cannot assume that if or when permission is granted on appeal, that anything illegal will be done on foot of that permission. An Bord Pleanála can proceed on the basis that any outstanding issue involving enforcement is an issue that will be taken up by the relevant planning authority as part of its enforcement powers. It is also the case that the applicant has failed to establish a factual basis to support the claim that the development permitted by the planning permission is necessarily incapable of being implemented at law. This is not a case in which it has been shown that there is no reasonable prospect of the permission being implemented lawfully or that the development has no reasonable prospect of being implemented.
The applicant's argument in relation to an irrational decision is predicated upon a claim that the proposed development is to be carried out on top of an illegal structure. That has not been established. Even if it were the case that it had been proved that the development permitted by the planning permission was to be carried out on top of an illegal structure, that, of itself, does not disentitle An Bord Pleanála from granting permission. The grant of permission, in the words of Keane J. in Convery v. Dublin Corporation, cannot be said to have authorised a developer to commit an act which would otherwise be unlawful.
In the light of the above, the Court is satisfied that An Bord Pleanála is not prohibited from granting planning permission in circumstances where the development in respect of which planning permission is sought incorporates an extant development which it is alleged amounts to an unauthorised use and/or development. Nor is it the case that an application for permission, in circumstances such as have been established in this case, must include an application for retention of the alleged unauthorised development. Therefore, it cannot be said that An Bord Pleanála was obliged to determine whether or not the disputed works were an unauthorised development or an exempted development. It also follows that the applicant has failed to establish that An Bord Pleanála acted in an irrational manner when it failed to determine whether or not the earlier extension works carried out to the side/front of the dwelling will, or will not, an exempted development."
897. There was no basis for the Inspector in this case to assume that Coole Windfarm Limited would by reason of this planning permission act unlawfully. Nor can it be said that anything contained in this permission would permit the commercial peat extraction operators, who are strangers to this matter, to act unlawfully. The planning status of their activity, and only their activity, has been determined in the section 5 referrals and the judgment of Meenan J. Any question arising from their continued activity or otherwise is entirely a matter as between them and the planning authority, as the relevant enforcement body, directly. Nor was the Board obliged or entitled to assume that the developer will act unlawfully.
898. As in Murphy, I do not consider that the complication which the Action Group have sought to introduce by reference to the activities of the commercial peat operators mean that the Board's decision was so irrational as to warrant interference by this Court.
899. The Action Group claim (E39) that the Board failed to have regard to relevant considerations by a failure to request further information identified by the Development Applications Unit ("DAU") Department of Culture, Heritage and the Gaeltacht contained in its letter dated 12 December 2017 which refers, inter alia, to the standards in respect of separation distances for certain bat species and the form and nature of conditions imposed which they say prevented a valid appropriate assessment.
900. I have considered this question in detail in the context of the proceedings issued by Mr. Sweetman and concluded that the Board did not fail to have regard to it. This is addressed in detail in Part 11(2) above.
901. As far as this ground refers also to the Board having had regard to irrelevant considerations, no particulars were given as to what those irrelevant considerations were.
902. After the conclusion of the hearing of these cases a number of supplemental submissions were made by all parties, with leave of the court. Those further submissions have been considered in this judgment. In addition, in correspondence, the Action Group's solicitors made a new submission that eight of the issues in the case "may be appropriate" for a reference to the Court of Justice of the European Union pursuant to Article 267 of the Treaty on the Functioning of the European Union. Each of these issues had been the subject of submissions and argument, by reference variously to the Directives, legislation and caselaw examined in this judgment without any indication that such a reference may be required or would be sought. They were all capable of being determined and have been determined in this judgment by reference to the evidence and sources of law cited by the parties, and no such reference was appropriate or necessary.
903. In Mr. Sweetman's proceedings I have concluded that none of the grounds identified in the Statement of Grounds are made out. The reasons for this conclusion are stated in part Eleven of this judgment, and the application will be dismissed.
904. In relation to the claims by the Action Group I have concluded that the grounds stated in paras. E10 and E11 of the Statement of Grounds, and only those grounds, are made out. Public notification is as important, being mandatory, for environmental impact assessment, as it is for the 'domestic' exercise of deciding to grant planning permission. The effect of O'Grianna is that environmental impact assessment of a windfarm must extend to the integrated project of the windfarm and ancillary works and the grid connection. The notice published in respect of the project did not comply with Article 6.2 of the EIA Directive and Articles 17, 18 and 98 of the Planning and Development Regulations 2001. My reasons for this conclusion are stated in Part 12(6) of this judgment.
905. Having regard to the importance of windfarms as a source of renewable energy and to my findings as to the validity in every other respect of the assessments made by the Board, this result is regrettable. Nonetheless an EIA which complies in every respect with the EIA Directive is mandatory before planning permission can be given for such a project, and therefore the court has no discretion.
906. There will be a declaration that by reason of the respondent's failure to inform the public of the environmental impact assessment of the project, as required by Article 6 of Council Directive 2014/52/EU, the assessment did not comply with the Directive and the respondent lacked jurisdiction to grant planning permission for the project, and an order of certiorari of the decision made on 26 March 2019.
907. I shall hear the parties as to the form of the order and as to costs and any other matters arising.
[1] The court heard extensive submissions about the provisions of s.34(1), (4) and (5) of the Act which permit the planning authority or the Board to impose conditions on any grant of permission, including conditions providing that points of detail may be agreed between the planning authority and a developer. No submissions were made as to the interplay between s.34 and s.172(1)(i).
[2] The 2006 Guidelines long predate the decision in O'Grianna (2014).
[3] The court was informed that the peat extraction operations were not ongoing at the time when the matter was under consideration by the Board.
[4] In Dr. Nealon's Bat Survey Report the Leisler Bat was identified as a higher risk species, but no bat roosts were identified at the site.
[5] I have described the Guidelines in detail Part Four of this judgment.