Balz & Anor v An Bord Pleanala

Factual and Procedural Background

The Applicants are owners and residents of land in a rural area of The City, engaged in horticulture and forestry. The Second Named Notice Party, Company B, applied to the First Named Notice Party, The County Council, for planning permission to develop a wind farm consisting of 11 turbines and associated infrastructure. The nearest turbine would be approximately 650 meters from the Applicants' home. The application included an Environmental Impact Statement (EIS) due to the scale of the development.

The County Council refused permission on three grounds: prematurity due to inadequate road infrastructure; material contravention of the County Development Plan concerning ecological habitats; and concerns about impacts on nearby designated Natura 2000 sites, arising from an inadequate Natura Impact Statement (NIS).

Company B appealed the refusal to the Respondent Board, which conducted an Environmental Impact Assessment (EIA) and Appropriate Assessment (AA) through an appointed Inspector. The Inspector recommended omission of four turbines due to visual and residential amenity concerns, but the Board rejected this recommendation and granted permission on 23 April 2013.

The Applicants obtained leave to seek judicial review of the Board's decision, challenging the lawfulness of the Board's EIA and AA, the Board's compliance with statutory requirements under the Planning and Development Act 2000 (as amended), and the adequacy of reasons given for the decision.

Legal Issues Presented

1. Whether the Board lawfully carried out an Environmental Impact Assessment (EIA) in compliance with section 172 of the Planning and Development Act 2000 and Directive 2011/92/EU.
2. Whether the Board lawfully carried out an Appropriate Assessment (AA) pursuant to section 177V of the Act and Article 6(3) of the Habitats Directive.
3. Whether the Board complied with the requirements of section 37(2)(b) and (c) of the Act in granting permission despite the Council's refusal based on material contravention of the development plan.
4. The adequacy of the reasons and considerations provided by the Board, particularly regarding its disagreement with the Inspector's recommendation to omit certain turbines.

Arguments of the Parties

Applicants' Arguments

• The Board failed to identify or provide a proper record of the EIA it purported to carry out, lacking examination, analysis, and evaluation of the direct and indirect effects of the proposed development.
• The Board unlawfully adopted the Inspector's report for the EIA except for the omission of four turbines, but failed to carry out a fresh EIA including those turbines.
• The Board did not comply with its obligation to make available to the public the evaluation of environmental effects as required by statute.
• The Board failed to comply with section 37(2)(b) and (c) by not considering or stating reasons based on the statutory criteria for granting permission in cases of material contravention.
• The Appropriate Assessment was inadequate, lacking complete, precise, and definitive findings and conclusions, and failed to address scientific doubts raised by third parties, including an environmental biologist.
• The Board did not provide sufficient reasons for its determination on AA, nor did it properly consider or record submissions challenging the NIS and AA.
• The Board's reasons for disagreeing with the Inspector’s recommendation to omit turbines were uninformative and failed to identify specific evidence relied upon.

Respondent and Company B's Arguments

• The Applicants did not challenge the Board's conclusion that the development did not materially contravene the development plan, rendering section 37(2)(b) and (c) inapplicable.
• The Board exercised its de novo jurisdiction and was entitled to reach its own view on material contravention regardless of the Council’s decision.
• The Board lawfully adopted the Inspector’s report for the EIA, and had sufficient evidence to form its own view, including rejecting the recommendation to omit turbines based on national guidelines and information on file.
• The Board’s obligation to provide reasons for disagreement with the Inspector’s recommendation was minimal and was satisfied by the reasons given.
• The Board properly carried out an AA and was entitled to rely on the Inspector’s report and the submitted NIS, which sufficiently addressed impacts on Natura 2000 sites.
• The Board was entitled to discount third party scientific opinions where these did not raise reasonable scientific doubt, particularly as no further submissions were made following additional information.
• The decision is entitled to a presumption of validity, and there was no evidence of illegality or failure to comply with statutory obligations.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed statutory and jurisprudential analysis of the Board’s obligations under the Planning and Development Act 2000, the EIA Directive, and the Habitats Directive. It recognized the Board’s de novo jurisdiction on appeal and the requirement that the Board itself must carry out lawful EIA and AA processes.

Regarding the material contravention issue, the Court interpreted section 37(2)(b) and (c) as applying only where both the planning authority and the Board conclude that the proposed development materially contravenes the development plan. Since the Board found no material contravention, the statutory restrictions and requirements under these subsections did not apply.

On the EIA, the Court found that the Board adopted the Inspector’s report except for the recommendation to omit four turbines. The Inspector’s report demonstrated awareness of the statutory requirements, including consideration of submissions and environmental data. However, the Board’s reasons for rejecting the omission of turbines were minimal and lacked reference to specific evidence, thus failing to provide a sufficient record of examination, analysis, and evaluation required by law. The Board’s statement that omission was unnecessary due to adherence to national guidelines was uninformative and did not adequately address ecological concerns raised by the Inspector.

Regarding the Appropriate Assessment, the Court noted that the Board did not expressly adopt the Inspector’s AA nor provide its own detailed findings and reasoning. The Inspector’s AA report was incomplete, lacking consideration of third-party scientific submissions raising reasonable doubt about impacts on Natura 2000 sites. The Board’s decision failed to record how it addressed these doubts or the rationale for its determination that the development would not adversely affect site integrity. This deficiency rendered the AA unlawful and invalidated the Board’s jurisdiction to grant permission.

Overall, the Court concluded that the Board’s decision was unlawful due to failure to comply with statutory requirements for EIA and AA, and failure to provide adequate reasons and record to enable public and judicial scrutiny.

Holding and Implications

The Court GRANTED the reliefs sought by the Applicants.

The Board’s decision granting planning permission was quashed on the grounds that it failed to lawfully carry out and record an Environmental Impact Assessment and an Appropriate Assessment as required by the Planning and Development Act 2000 and relevant EU Directives. The Court found that the Board did not comply with the statutory requirements to provide adequate reasons and considerations, particularly in relation to the rejection of the Inspector’s recommendation and the assessment of ecological impacts on Natura 2000 sites.

The direct effect of this ruling is to invalidate the planning permission granted by the Board. No broader precedent beyond the facts and statutory interpretation in this case was established.