Sweetman v APB & Ors (Approved)

Factual and Procedural Background

The Applicant challenges the legality of the grant of planning permission by the Board for a windfarm development on a large bogland site in County Longford, Ireland. The site spans approximately 1,908 hectares and includes extensive drained bog areas historically used for industrial peat production. The turbines proposed would be among the tallest structures in Ireland, reaching up to 185 metres in height, accompanied by a 110 Kv electrical substation and grid connection.

The development site includes a significant private rail network owned by the developer’s parent entity, Company A. Peat harvesting on the site ceased permanently in 2019, following a High Court judgment invalidating statutory instruments that previously exempted peat extraction from certain environmental licensing requirements.

The planning application was submitted under the strategic infrastructure provisions of the Planning and Development Act 2000 in January 2019. A Natura Impact Statement was prepared assessing effects on nearby European protected sites. An oral hearing was held in June 2019, during which an inspector recommended refusal of permission due to unmitigated impacts on the landscape and climate. The developer submitted further information in response, including a draft peat rehabilitation plan and details on use of existing drainage infrastructure. The Board advertised this additional information and considered submissions before granting permission in June 2020, subject to conditions including adherence to submitted plans and particulars.

The Applicant raises concerns that parts of the development rely on landforms and infrastructure created without required environmental impact assessments or appropriate assessments under EU law. Leave for judicial review was granted in September 2020, primarily seeking certiorari of the planning permission.

Legal Issues Presented

1. Whether the Board erred in law by granting planning permission based on a draft, unfinalised peat rehabilitation scheme not agreed with the Environmental Protection Agency.
2. Whether the Board failed to properly record the basis of its disagreement with the inspector’s recommendation as required by statute.
3. Whether the planning application contained adequate plans and particulars of the proposed development, particularly regarding the design, dimensions, and locations of the turbines and associated infrastructure, in compliance with the Planning and Development Regulations 2001.
4. Whether the use of a "design envelope" or variable design parameters in the application is compatible with domestic planning law and EU environmental directives.
5. Whether the Board properly considered constitutional obligations and environmental law requirements, including environmental impact assessment (EIA) and appropriate assessment (AA) directives.

Arguments of the Parties

Applicant's Arguments

• The Board improperly relied on a draft peat rehabilitation plan that was never finalised or agreed by the Environmental Protection Agency.
• The planning application lacked sufficient detail, providing only typical designs and maximum dimensions without precise particulars, which undermines public participation and statutory requirements.
• The use of a wide "design envelope" allows the developer excessive post-consent discretion, circumventing proper assessment and public scrutiny.
• The Board failed to adequately record reasons for disagreeing with the inspector’s recommendation to refuse permission.
• Some infrastructure and landforms used by the development were created without required environmental assessments, potentially breaching EU law.
• The Board did not properly consider constitutional obligations related to human health and environmental protection.

Respondents' and Notice Party's Arguments

• It is not impermissible for the Board to impose conditions referencing draft documents, including the rehabilitation plan.
• The Board’s decision contains adequate reasoning and records the basis for disagreement with the inspector.
• The application’s "typical" details and maximum dimensions fall within an accepted planning concept of a "design envelope," allowing limited flexibility while remaining within assessed parameters.
• All aspects of the development were assessed on a worst-case basis, which is sufficient for compliance with planning regulations and environmental assessments.
• The Board contends that the Applicant’s pleadings regarding inadequate detail were eventually clarified and are acceptable.
• Precedent supports that some flexibility in design and dimensions is permissible, and the Board relied on relevant case law.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by distinguishing domestic law issues from EU law issues, assuming for present purposes that EU law did not add to the domestic legal requirements under the Planning and Development Regulations 2001.

The Court held that it is not inherently impermissible for the Board to rely on a draft rehabilitation plan as part of its decision, especially when the Board and inspectors clearly understood the plan was unfinalised. The Board’s decision contained adequate reasons, including the basis for disagreement with the inspector’s refusal recommendation, satisfying statutory requirements.

Regarding the adequacy of plans and particulars, the Court conducted a detailed analysis of the statutory framework, especially article 214 of the 2001 regulations, which requires specific plans and particulars sufficient to describe the proposed development. The Court concluded that the application’s reliance on a "design envelope" — providing only typical designs and maximum dimensions without precise particulars — fails to meet the statutory requirement for reasonably precise plans and particulars.

The Court rejected the Board’s argument that assessing the application on a "worst-case" basis suffices, emphasizing that statutory obligations require the submission of particularised plans rather than open-ended maximum parameters. The Court distinguished between a modest degree of flexibility around fixed plans (as recognized in prior case law) and an open-ended design envelope that allows significant post-consent discretion.

While English law and guidelines recognize the concept of a design envelope, the Court noted that these are supported by explicit national policy statements and guidelines absent in Irish law. Moreover, the English case law underpinning the Rochdale envelope concept pertains primarily to environmental assessment procedures rather than the validity of planning applications themselves.

The Court expressed concern that endorsing broad design envelope applications would undermine the statutory scheme, public participation rights, and the certainty required in planning processes. It observed that the complexity of modern planning law and the importance of public involvement counsel against judicial creation of new flexible application procedures not grounded in statute or policy.

On the pleadings, the Court found the Applicant’s claims sufficiently clear despite some initial lack of specificity, and held that no injustice arose from the timing of clarifications.

Finally, the Court noted that certain aspects of the development infrastructure were constructed after the transposition deadlines for relevant EU directives, raising concerns about compliance, but these were not the primary basis for the decision at this stage.

Holding and Implications

The Court issued an order of certiorari quashing the Board’s decision granting planning permission for the windfarm development.

This ruling directly affects the parties by invalidating the permission granted, requiring reconsideration or amendment of the application in compliance with statutory requirements for plans and particulars. The decision does not establish new precedent expanding the scope of design envelope applications under Irish planning law but reinforces the necessity for sufficiently precise and particularised applications to ensure proper public participation and legal certainty.