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

Factual and Procedural Background

This opinion concerns a judicial review application challenging the grant of planning permission for a wind farm development under the strategic infrastructure development (SID) procedure. The applicants contend that the particulars of the development were inadequate, that the planning authority's conduct of the Appropriate Assessment (AA) and Environmental Impact Assessment (EIA) was defective, and that proper notice was not given of additional information supplied by the developer.

Permission for earlier phases of development at the site was granted in 2013 but quashed in 2014 on grounds of inadequate AA, with permission refused on remittal. The board reconsidered the matter, engaged expert consultants, held an oral hearing in June 2016, and refused permission in February 2017 on AA grounds.

The current application process began with consultations in March 2020, the board’s declaration of SID status in July 2021, and formal application in June 2022. The board decided no oral hearing was necessary in January 2023 and requested further information. The first named notice party submitted revised plans and additional information in March and July 2023. The board directed public notice of this additional information, which was published on 1 August 2023, including in the Irish Times and the Roscommon Herald, along with site notices and notification to the local council.

The applicants made submissions challenging the process and the adequacy of the assessments. The matter proceeded through various procedural steps including motions for discovery and particulars, objections to affidavits, and amendments to grounds of challenge. The hearing commenced in September 2024, with several preliminary issues addressed and some grounds withdrawn. Judgment was reserved following the hearing.

Legal Issues Presented

1. Whether the planning application was properly particularised and provided sufficient information in compliance with domestic planning regulations.
2. Whether the board complied with its obligations under the Habitats Directive, Birds Directive, and EIA Directive in conducting Appropriate Assessment and Environmental Impact Assessment.
3. Whether the board failed to give proper notice and opportunity for submissions on additional information supplied by the developer, in breach of statutory public participation requirements.
4. Whether the board and its inspector possessed sufficient expertise and scientific knowledge to properly assess the application and environmental impacts.
5. Whether the board abdicated its independent statutory role by over-relying on developer-supplied material without proper independent assessment.
6. Whether the visual impact assessment and reasons given by the board and inspector were adequate and consistent.
7. Whether the site investigations, including hydrological and karst feature assessments, were adequate to support the AA and EIA.

Arguments of the Parties

Applicants' Arguments

• The planning application lacked necessary measurements and accurate bespoke drawings for key structures, insufficiently described grid connectivity, and initially failed to establish land ownership or rights (later withdrawn).
• The board's AA and EIA were defective due to inadequate site investigations, including for karst features, drainage, grasslands, and fauna such as bats and birds.
• The board improperly relied on outdated or draft wind energy guidelines without proper strategic environmental assessment.
• The board failed to provide adequate notice and opportunity for submissions on a voluminous 400-page additional information package submitted in March 2023.
• The board and inspector lacked sufficient expertise and best scientific knowledge to carry out proper assessments.
• The board abdicated its statutory role by excessively deferring to developer material without independent evaluation.
• The visual impact assessment was inconsistent and lacked reasoned conclusions regarding turbine omission decisions.

Board's Arguments

• The planning application was sufficiently particularised with detailed drawings and information; alleged deficiencies were merit-based and not grounds for invalidity.
• The board and inspector properly conducted the AA and EIA, supported by extensive site investigations and expert reports, and conclusions were rational and adequately reasoned.
• The applicants failed to particularise breaches adequately and did not discharge the onus of proof to demonstrate any legal infirmity.
• The board complied with procedural requirements and afforded opportunities for submissions; the applicants were not deprived of making submissions on additional information.
• The board and inspector had sufficient expertise, either in-house or via access to external experts, to assess the application and environmental reports.
• The board did not abdicate its role by accepting developer material; such acceptance does not equate to failure to independently assess.
• The visual impact assessment and reasons for turbine omission were consistent and based on expert judgment.

First Named Notice Party's Arguments

• The affidavit filed by the applicants’ witness was inadmissible due to lack of independence, hearsay, going beyond permitted reply, and containing submissions rather than facts.
• The board’s statutory obligations regarding notice and public consultation were not properly discharged by delegating to the developer, which created procedural irregularities.
• The applicants were not prejudiced by the notice or consultation process as they had opportunities to make submissions.
• The notice of additional information contained errors (e.g., incorrect newspaper named, incomplete document circulation), but these did not cause prejudice to the applicants.

State Respondents' Arguments

• Supported the board’s position on expertise and procedural compliance.
• Not subject to relief sought by the applicants as no continuing remedy was pursued against them.

Table of Precedents Cited

Court's Reasoning and Analysis

The court conducted a detailed ground-by-ground analysis of the applicants' challenges, focusing on the evidential burden and the legal framework governing planning applications, environmental assessments, and public participation.

On the admissibility of the applicants' affidavit, the court found that the deponent lacked the requisite independence to qualify as an expert witness, and the affidavit contained inadmissible hearsay, submissions, and material beyond the permitted scope of reply. Given the pervasive inadmissibility and the impracticality of severing admissible parts, the affidavit was struck out in full.

Regarding the particulars of the planning application, the court held that the application was sufficiently particularised. Limited flexibility in design parameters, including corrections to turbine foundation dimensions, did not invalidate the application. The board had before it detailed drawings and information adequate to assess environmental impacts.

The court emphasized that applicants bear the onus of proof to demonstrate flaws in the board’s environmental assessments (EIA and AA). The applicants failed to provide sufficient evidence to establish inadequacy in site investigations, hydrological assessments, or the board’s consideration of karst features and drainage. The board’s acceptance of developer reports, including expert consultant input, was entitled to curial deference and did not constitute abdication of statutory duties.

The court also found that the board and inspector possessed or had access to sufficient expertise to carry out the assessments, consistent with EU law requirements. Mere non-expert assertions or speculation by the applicants did not suffice to impugn this expertise.

On visual impact, the court accepted the inspector’s reasoned approach, including turbine omissions to protect the Killeglan Karst Landscape, and rejected claims of inconsistency or inadequate reasoning.

Concerning public participation and notification of additional information, the court identified procedural irregularities. The board delegated its statutory obligation under section 37F(2) of the Planning and Development Act 2000 to the developer (first named notice party) to give notice and make information available. This delegation was contrary to the statutory wording and principles of public law accountability. Furthermore, the public notices and information availability were deficient in scope and accuracy, including incorrect references to newspapers and incomplete provision of documents to statutory consultees.

However, the applicants did not plead or demonstrate that they personally suffered prejudice or were deprived of the opportunity to make submissions. The complaint related primarily to the public at large. The court held that relief by certiorari to quash the board’s decision was not warranted on this basis.

Instead, the court considered that a declaratory order marking the board’s non-compliance with its statutory duty was appropriate to clarify the legal position and encourage future compliance.

Holding and Implications

Holding: The court ordered a declaration that the board failed to comply with its statutory obligation under section 37F(2) of the Planning and Development Act 2000 to make the additional information available for inspection, give notice of its availability, and invite further submissions. The applicants’ application for all other substantive relief was dismissed.

Implications: The decision confirms that the board cannot delegate its statutory public notice and consultation functions to the developer, emphasizing the importance of procedural compliance in public participation. However, absent evidence of prejudice to the applicants, procedural irregularities of this nature do not warrant quashing of planning permissions. The ruling does not set new substantive precedent on environmental assessment standards but clarifies procedural obligations under section 37F(2). Costs are to be awarded to the applicants against the board limited to the issue on which they succeeded. The case is listed for further directions on costs.