Roache & Anor v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

The Applicants challenged a decision by the planning authority, An Bord Pleanála ("the Board"), granting permission on 4 April 2019 for the development of an 11-turbine wind farm ("the Ballymanus Wind Farm") in several townlands in County Wicklow. Central to the Applicants' objection was the alleged failure to properly assess the impact of the proposed development on their sole drinking water supply, which derives from a mountain spring ("the Killaduff Spring"), and concerns about the visual amenity of the area. Additional issues related to turbine height, set back distances, and alleged failure to have regard to Planning Circular PL05/2017.

The First Named Applicant died before the hearing; the proceedings continued with the Second Named Applicant, her son, who farms the land that has been in the family since 1917. The Applicants' lands have a right to take water from Roddenagh Wood, owned by Coillte Teoranta, where the Killaduff Spring originates. The spring supplies the Applicants' dwelling and a public roadside water spout. The development site overlaps with parts of the spring's catchment area and involves forestry land clearance.

The Developer had previously applied for a 12-turbine wind farm, which was refused due to visual impact concerns. The revised 11-turbine application included detailed environmental impact assessments (EIAR), addressing a wide range of environmental matters, including hydrogeology and visual impacts.

The planning authority refused permission citing visual impact and other matters but did not refuse on water supply grounds. The Developer appealed to the Board, which granted permission by a 2:1 vote, disagreeing with the Inspector's recommendation to refuse based on visual impact. The Board acknowledged a clerical error in the turbine height condition, which was later rectified.

Judicial review leave was granted challenging the Board's decision on three issues: assessment of impact on the Applicants' water supply, visual impact, and treatment of turbine height and set back with respect to Circular PL05/2017.

Legal Issues Presented

1. Whether the Board properly assessed the environmental impact of the proposed development on the Applicants' sole drinking water supply from the Killaduff Spring, including the adequacy of the EIAR and the correctness of the identified zone of contribution.
2. Whether the Board lawfully assessed and reasoned its decision concerning the visual impact of the wind farm, particularly in disagreement with the Inspector and local planning authority.
3. Whether the Board failed to properly have regard to Planning Circular PL05/2017 regarding turbine height and set back distances, and whether the Board's decision was lawful in this regard.

Arguments of the Parties

Applicants' Arguments

• The EIAR erroneously assumed the Applicants had a private well, not appreciating that their sole water supply was from the Killaduff Spring, undermining the adequacy of the environmental impact assessment on water supply.
• The zone of contribution to the Killaduff Spring was incorrectly identified by the Developer and accepted by the Board, excluding turbine 4 and a meteorological mast from the catchment area, contrary to earlier consultation maps and the Applicants' submissions.
• The Board failed to adequately explain or give reasons for rejecting the Applicants' concerns regarding water supply impact and the zone of contribution.
• The Board improperly considered "significant man-made interventions" in the landscape when assessing visual impact, without evidence or proper explanation, and failed to properly assess visual impact in accordance with planning policy and the EIA Directive.
• The Board failed to properly consider or apply Planning Circular PL05/2017 regarding minimum turbine set back distances, resulting in an unlawful decision.
• The Applicants sought to adduce new expert evidence post-decision to demonstrate potential impact on water supply, arguing the Board should have made further inquiries.

Board's Arguments

• The assumption in the EIAR of a private well at the Applicants' dwelling was a precautionary, conservative approach and did not exclude separate and proper assessment of the actual spring water supply.
• The Board properly relied on the detailed site investigations and evidence-based findings in the EIAR, including the zone of contribution map (Figure 8.10), which excluded turbine 4 and the meteorological mast from the catchment.
• The Board and Inspector adequately considered and reasoned the environmental impact on water supply; the Applicants' bare assertions without evidence did not require detailed rebuttal.
• The Board was entitled to disagree with the Inspector on visual impact without conducting a site visit itself, relying on the comprehensive EIAR, Landscape and Visual Statement, photomontages, and Inspector's Report.
• The description of the landscape as having "significant man-made interventions" and "low to medium sensitivity" is supported by detailed evidence in the EIAR, including repeated use of the term "anthropogenic" (meaning man-made or human intervention) and photographic evidence.
• The Board had regard to Planning Circular PL05/2017, which was a non-binding draft preferred approach, and was not required to apply it as a mandatory rule; the Board properly considered the relevant guidelines and the draft circular.
• The clerical error in turbine height condition was acknowledged and rectified; the Board understood the actual set back distances and turbine heights.
• The Board objects to the Applicants' attempt to rely on new expert evidence not before it at the time of decision, which is generally inadmissible in judicial review challenges to EIA decisions.

Developer's Arguments

• The EIAR's approach to groundwater impact was conservative and evidence-based, including quantitative assessments of groundwater flow and travel times.
• With appropriate mitigation measures, no impact on the local spring source is expected.
• The affidavit evidence presented by the Applicants post-decision is inadmissible as it was not before the Board and does not undermine the adequacy of the EIAR or the Board's decision.
• The Board properly had regard to Planning Circular PL05/2017 as reflected in the Inspector's Report and the materials before it.
• The Board's environmental impact assessment and visual impact conclusions were properly made on the evidence before it and explained adequately.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully analysed the factual and evidential matrix surrounding the environmental impact assessment of the Applicants' water supply and the visual impact of the proposed wind farm. The Court concluded that the EIAR adopted a conservative and thorough approach by assuming a private well supply for completeness, but also separately and adequately assessed the actual spring water source relied upon by the Applicants. The Board and the Inspector had before them extensive expert investigations, site visits, and hydrogeological studies which were accepted as adequate and evidence-based. The Court found no merit in the contention that the EIAR or the Board failed to properly identify or assess the zone of contribution to the Killaduff Spring, noting that the Board was entitled to prefer the detailed evidence-based findings over the Applicants' unsupported assertions.

Regarding the duty to give reasons, the Court held that while the Board did not explicitly address the Applicants' contention about the differing catchment maps, the reasons for rejecting that contention are clearly inferable from the materials before the Board and the Inspector's acceptance of the EIAR's findings. The Board's decision was sufficiently reasoned to meet legal standards.

The Court also addressed the admissibility of new expert evidence submitted by the Applicants post-decision, holding that such evidence, which was not before the Board, is generally inadmissible in judicial review proceedings challenging the adequacy of an EIA. The Court found no special circumstances warranting admission of the new evidence and concluded that the evidence did not undermine the Board's decision.

On visual impact, the Court found that the Board was entitled to disagree with the Inspector and the local planning authority without conducting its own site visit, relying on the comprehensive EIAR, photomontages, and expert reports. The Board's reference to "significant man-made interventions" and a "low to medium sensitivity" landscape was supported by detailed evidence in the EIAR, including repeated use of the term "anthropogenic," which the Court interpreted as denoting man-made or human interventions such as agriculture, forestry, and existing wind farms. The Court rejected the Applicants' challenge to the Board's assessment of visual impact.

Regarding Planning Circular PL05/2017, the Court clarified that the circular represents a non-binding "preferred draft approach," not a statutory guideline under s. 28 of the Planning and Development Act 2000. The Board had regard to it, as reflected in the Inspector's Report and the decision, but was not legally required to apply it as a binding rule. The clerical error regarding turbine height was acknowledged and corrected, and the Board's understanding of set back distances was not flawed.

In summary, the Court found that the Board properly discharged its statutory functions, including environmental impact assessment obligations, and that the Applicants failed to substantiate any legal or factual basis to invalidate the Board's decision.

Holding and Implications

The Court DISMISSED the judicial review proceedings challenging the grant of planning permission for the Ballymanus Wind Farm.

The direct effect of this decision is to uphold the Board's grant of planning permission, confirming that the environmental impact assessment and planning decision-making process complied with applicable legal and procedural requirements. No new legal precedent was established beyond the application of existing principles regarding environmental impact assessment, judicial review standards, and the status of planning circulars. The case underscores the importance of comprehensive expert investigation and proper reasoning in planning decisions, as well as the limited scope for introducing new evidence after administrative decisions have been made.