Martin v An Bord Pleanala (Approved)

Factual and Procedural Background

This judicial review concerns an application for leave to apply for an order of certiorari challenging a decision of An Bord Pleanála ("the Board") dated 23 October 2020. The Board upheld the grant by Cavan County Council of planning permission to Company B ("the notice party") for the retention and completion of a meteorological mast and associated works at a wind farm known as the Raragh Wind Farm, located in The State. The applicant is a farmer owning a house adjoining the wind farm and acts as an environmental campaigner. The original planning permission for the wind farm, including provision for an 85m high meteorological mast at a specified location, was granted in December 2010. Construction began in February 2019, and the wind farm became operational in December 2019, but the mast was not built at that time. Subsequently, an application was made to relocate and complete the mast at a different location on the site, which was granted permission by the Council on 16 March 2020. This decision was appealed to the Board, which ultimately granted permission on 23 October 2020 following a planning inspector's recommendation.

Legal Issues Presented

1. Whether the application for permission to relocate the meteorological mast required a fresh Environmental Impact Assessment (EIA) under section 172 of the Planning and Development Act 2000 and the EIA Directive, including assessment of cumulative effects of the entire wind farm project.
2. Whether Corrinshigo Lane, a lane traversing the wind farm site, constitutes a "public road" for the purposes of public notification requirements under article 19(1)(c) of the Planning and Development Regulations 2001, thereby requiring site notices at both entrances.
3. Whether the Board acted ultra vires and erred in law in granting permission without a fresh EIA and without proper public notification.

Arguments of the Parties

Applicant's Arguments

• The applicant contended that the wind farm project should be considered in stages, with the meteorological mast being a third stage requiring its own EIA under the Planning and Development Act 2000 and the EIA Directive.
• He argued that the relocation of the mast without a fresh EIA amounted to impermissible project splitting (also known as salami slicing), circumventing the requirements of the EIA Directive.
• The applicant asserted that the lane known as Corrinshigo Lane is a public road or at least has entrances from public roads at both ends, and thus two site notices were required for proper public notification, which was not complied with.
• He challenged the advice given by a Council official that Corrinshigo Lane was a private road, alleging this was factually incorrect and may have misled the Board.
• The applicant sought declarations that the Board's decision was ultra vires due to failure to comply with EIA requirements and notification regulations.

Respondents' and Notice Party's Arguments

• The Board and notice party contended that the applicant's grounds did not meet the threshold of substantial grounds as defined in relevant jurisprudence and that the grounds were unfounded.
• They maintained that Corrinshigo Lane was not a public road as it had not been taken in charge by the local authority, and thus the public notification requirements were satisfied by the single site notice erected at the main entrance from the public road R162-4.
• They argued that the relocation of the meteorological mast was a sub-threshold modification of an already EIA-assessed project and did not require a fresh EIA.
• They rejected the contention of impermissible project splitting, emphasizing that the mast was part of the original project and the change did not increase the size or environmental impact significantly.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined the applicant's claim that the relocation of the meteorological mast required a fresh EIA due to cumulative environmental effects and that failure to conduct such an assessment amounted to unlawful project splitting. The Court acknowledged the legal principle that project splitting is impermissible under the EIA Directive and relevant case law. However, it found that the mast was part of the original wind farm project, which had been subject to an EIA. The relocation was a sub-threshold modification that did not increase the size or environmental impact of the development. Both the Council's planner and the Board's inspector concluded that no significant environmental effects would arise from the relocation, and thus no fresh EIA was required.

Regarding public notification, the Court analyzed the definition of "public road" under the Planning and Development Act 2000 and the Roads Act 1993, which requires both a public right of way and maintenance responsibility by a road authority. The Court accepted the evidence that Corrinshigo Lane, although traversed by a public right of way, had not been taken in charge by the local authority and thus did not meet the statutory definition of a public road. Consequently, the erection of a single site notice at the main entrance from the public road R162-4 complied with notification requirements under article 19(1)(c) of the 2001 Regulations. The applicant's attempt to introduce arguments regarding additional entrances from public roads was rejected as unpleaded and procedurally improper.

The Court further rejected the applicant's contention that the Board was misled by the Council official's memorandum, finding no evidence to dispute the official's factual assertions. The Court also dismissed the applicant's late-raised argument under section 34(12) of the Planning and Development Act 2000 for lack of proper pleading.

In sum, the Court found no error of law or ultra vires conduct by the Board in granting permission without a fresh EIA and with the public notification as conducted.

Holding and Implications

The Court REFUSED the applicant's application for leave to apply for judicial review.

The direct effect of this decision is that the planning permission granted by the Board for the retention and completion of the meteorological mast at the relocated site stands. The Court did not find any breach of EIA requirements or public notification obligations. No new legal precedent was established; rather, the decision reaffirms the application of existing principles regarding project splitting, EIA thresholds, and statutory definitions of public roads in the context of planning permissions.