Element Power Ireland Ltd v An Bord Pleanala

Factual and Procedural Background

The Applicant sought judicial review of the decision of the Respondent Board dated 12 October 2016, which refused permission for a wind farm development comprising up to 47 turbines, an electricity substation, and associated works. The development was located mainly in County Kildare with two turbines in County Meath. The Board had earlier determined the development to be strategic infrastructure under the Planning and Development Act 2000. The application was publicly notified, received numerous submissions, and was considered in a detailed inspector's report recommending refusal for 12 reasons. The Board refused permission citing three reasons, notably prematurity due to absence of national and local wind energy strategies with a spatial dimension. The Applicant challenged all three reasons, contending that if Reason 1 was invalid, it tainted the entire decision. The Board maintained the validity of all reasons and argued that invalidity of Reason 1 would not affect the others.

Legal Issues Presented

1. Whether the Board lawfully refused permission on the basis that the development was premature due to absence of national or local wind energy strategies with a spatial dimension.
2. Whether Reason 1 for refusal was too vague or unclear to be adequate and intelligible.
3. The validity of the Board’s other reasons for refusal concerning the dispersed layout and impact on local road infrastructure.

Arguments of the Parties

Applicant's Arguments

• The Board acted ultra vires, fettered its discretion, and took into account irrelevant considerations by refusing permission based on absence of national or local wind energy strategies with a spatial dimension.
• The existing national and local policies support the development, and the proposed revised guidelines and framework documents were not in force and should not have influenced the decision.
• The Board’s approach effectively suspended developers’ rights to obtain permission pending adoption of new strategies, thus disproportionately restricting constitutionally protected property rights.
• Reason 1 was vague and unclear, failing to specify what aspects of national or local strategies were lacking.
• The Board acted inconsistently and arbitrarily by citing absence of strategy as a reason for refusal in this case but not in others.
• Regarding Reason 2, the Board’s claim that a more spatially concentrated development would be more efficient was factually incorrect based on technical evidence about turbine placement and energy output.
• Reason 3’s concerns about road integrity could have been addressed by conditions or further information, making refusal disproportionate.

Respondent's Arguments

• The Board’s function under the 2000 Act is to determine applications in accordance with proper planning and sustainable development, which is inherently “plan-led.”
• Prematurity is a valid concept where development is proposed before relevant development plans or strategies indicating suitable locations are adopted.
• Existing policies support wind energy generally but do not address specific locational suitability, justifying the Board’s concern about undermining future strategies.
• The decision was specific to the counties involved and did not prejudice other areas or applications.
• The Board’s decision was based on the materials before it, including county development plans and national policy documents, and was a proper exercise of planning judgment.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the Board’s refusal reasons in the context of statutory provisions, existing policies, and constitutional principles. The central legal issue was whether the Board lawfully refused permission on the basis that the development was premature pending the adoption of national and local wind energy strategies with a spatial dimension.

The Court found that the Board’s reliance on the absence of such strategies was ultra vires because the 2000 Act did not empower the Board to refuse permission on the basis of non-existent or unadopted policies or strategies. While the Board must have regard to existing development plans and Ministerial guidelines, it cannot treat preliminary, draft, or proposed policies as determinative or grounds for refusal.

The Court emphasised the constitutional protection of property rights and the need for certainty in planning criteria. It held that the absence of a spatial strategy did not amount to a relevant consideration permitting refusal, particularly where existing county development plans contained general wind energy policies, albeit without detailed spatial dimension.

The Court also rejected the argument that Reason 1 was too vague or unclear, finding it sufficiently intelligible when read in context with the inspector’s report and associated documents.

Regarding Reasons 2 and 3, the Court found these to be valid planning considerations relating to the dispersed layout's adverse effects and the impact on local road infrastructure. The Court acknowledged that these matters fall within the Board’s discretion and expertise.

Ultimately, the Court concluded that Reason 1 tainted the overall decision because it was a prominent, overarching reason connected to the other reasons. The Court exercised its discretion to quash the entire decision and remit the matter to the Board for reconsideration based on the information before it as of 6 October 2016, allowing the Board to seek further information or modifications if appropriate.

Holding and Implications

The Court’s final ruling was to QUASH THE BOARD'S DECISION IN ITS ENTIRETY and remit the planning application for reconsideration.

The direct effect is that the Applicant’s planning application must be re-evaluated by the Board without reliance on the invalid Reason 1 concerning prematurity due to absence of wind energy spatial strategies. The Board retains discretion to consider the valid Reasons 2 and 3 and may request further information or modifications.

No new precedent was established beyond clarifying the limits on the Board’s powers to refuse permission based on absence of unadopted or draft policies. The decision reinforces the principle that planning authorities must act within their statutory remit and cannot refuse permission on the basis of speculative or prospective policy frameworks.