Connolly v An Bord Pleanála

A recent High Court judgement in relation to the granting of permission for a wind farm development in Co. Clare by An Bord Pleanála has raised significant implications for decisions made by public bodies such as An Bord Pleanála. In Connolly v An Bord Pleanála [2016], the High Court overturned a grant of permission for a four turbine wind farm development at Coor West, Shanvogh, Co. Clare. The plaintiff in this case contended that the Board failed: (1) to carry out and/or record any screening assessment for Appropriate Assessment; (2) to carry out and/or record any proper Appropriate Assessment; (3) to carry out and/or record any proper Environmental Impact Assessment; and (4) to consider or have regard to its obligations under Section 37(2) of the Planning and Development Act 2000, as amended.

The first complaint related to Section 177U of the Planning and Development Act 2000, as amended, which requires a screening for Appropriate Assessment to determine whether the proposed development is likely to have a significant effect on a European site. Under Section 177U(6) of the Act, notice is to be given to the applicant, any person who made a submission and any party to an appeal or referral that a determination has been made that an Appropriate Assessment is required, complete with reasons as to why.

Ms Connolly contended that the Board had failed to give reasons when it issued a notice under Section 177U(6) of the Act. The Court agreed and found that the Board did not comply with Section 177U(6) of the Act.

In relation to the second complaint, Section 177V of the Act is relevant, which requires an Appropriate Assessment to include a determination as to whether a development would adversely impact the integrity of a European site. The Court found that the Board did not adequately satisfy these requirements under Section 177V, following Kelly v An Bord Pleanála [2014], and found that the Board’s determination amounted to little more than an assertion the ‘Having considered all the material put in front of it, the Board has reached the following conclusion..’.     

As regards the third complaint, the Court observed that the report on the proposed development had included a number of changes in the development’s size, location and structure yet no analysis of this was contained in the Board’s report, thereby rendering it difficult to demonstrate whether the Board had complied with the requirements of Section 172(1J) of the Act in giving a proper “evaluation of the direct and indirect effects of the proposed development”.

In relation to the fourth complaint, the Court observed that Section 37(2) of the Act, relating to the powers of the Board in determining an appeal under Section 37 to grant a permission even if the proposed development materially contravenes the relevant development plan, did not apply.

The presiding judge, Mr Justice Barrett, determined that it was not enough for a public decision making body to issue a decision that refers in “a largely uninformative manner” to an “an ocean of material” to justify its decision and leave an affected party thereafter to “fish in that ocean” for whatever they might catch of relevance within the “ever diminishing timeframe” for judicial review. 

Mr Justice Barrett observed that the Board must make precise and definitive findings and conclusions to a degree of specificity to enable an affected party to meaningfully assess the lawfulness of that decision and enable a court to undertake a comprehensive judicial review.

 

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