Factual and Procedural Background
The case concerns an application for judicial review challenging a decision by the planning authority (the Board) granting planning permission for a wind farm development comprising up to 22 turbines in North County Cork. The development site lies within multiple townlands south of the Nagle Mountains, encompassing predominantly agricultural and forestry lands. The application process began with pre-application consultations in December 2018, followed by a determination in November 2019 that the proposed development constituted strategic infrastructure development, requiring application directly to the Board.
The Environmental Impact Assessment Report (EIAR) was submitted in November 2020, including considerations on operational noise and amplitude modulation (AM). The formal planning application was lodged in December 2020. The applicant submitted a voluminous observation in February 2021, objecting on various grounds. The Board issued a request for further information in September 2021, to which the notice party responded in March 2022.
An inspector was appointed and conducted site visits in July 2021 and December 2022, completing her report in January 2023. The Board considered the submissions and inspector’s report in October 2023 and granted permission in November 2023. The applicant sought judicial review, with leave granted in January 2024, and the matter was heard in October 2024. Judgment was reserved and written comments exchanged post-hearing.
Legal Issues Presented
- Whether the Board erred in law by excluding relevant considerations, particularly regarding wind turbine noise, by relying solely or primarily on the 2006 Wind Energy Development Guidelines (WEDG 2006) and failing to consider more recent scientific material.
- Whether the Board failed to properly consider or engage with the applicant’s submissions on noise impacts and the alleged outdated nature of the WEDG 2006, contrary to fair procedures and natural justice.
- Whether the Board failed to adopt or apply best practice standards or methodologies for noise assessment, including amplitude modulation (AM), and thereby breached constitutional rights related to property and nuisance.
- Whether the Board’s Environmental Impact Assessment (EIA) was inadequate, specifically regarding noise impacts and AM, and whether the Board lacked objective information to conclude no significant environmental effects.
Arguments of the Parties
Applicant's Arguments
- The Board unlawfully excluded relevant considerations by relying on outdated noise guidelines (WEDG 2006) and ignoring submissions on more recent scientific developments.
- The Board failed to properly consider or engage with the applicant’s extensive submissions on noise impacts, breaching fair procedures and natural justice as established in Balz v. An Bord Pleanála.
- The Board did not conduct an inquiry into what constitutes best practice for noise standards, failed to adopt consistent or coherent methodologies, and effectively granted immunity against nuisance claims, infringing constitutional rights.
- The EIA was legally deficient for failing to adequately assess noise impacts, particularly amplitude modulation, and lacked objective information to support the Board’s conclusion of no significant environmental effects.
- The Board’s approach was contrary to national and European law, including procedural obligations under the Aarhus Convention and relevant EU directives.
Board's Arguments
- The Board did not rely solely on WEDG 2006 but considered other relevant materials including the 2019 Draft Guidelines, WHO 2018 Environmental Noise Guidelines, British Standard BS 4142:2014, and Institute of Acoustics Good Practice Guide.
- The applicant’s submissions, including those based on materials other than WEDG 2006, were properly considered by the Board and its Inspector; there was no failure to have regard to relevant considerations.
- The Board’s decision complied with fair procedures, natural justice, and constitutional requirements; the applicant’s reliance on Balz and Smyth v. RPA is misplaced.
- The Board’s role is to assess the information provided, not to dictate the methodology used by applicants; it is not bound to update or revise guidelines, which is a policy-making function.
- The EIA was conducted in accordance with statutory requirements, and the Board’s conclusion of no significant environmental effects was open to it on the evidence presented.
- Concerns about amplitude modulation were considered and addressed in the Inspector’s report and submissions; the Board lawfully accepted expert advice that conditions or penalty schemes for AM were not appropriate at this time.
Notice Party's Arguments
- The Board did not fail to consider material relating to wind turbine noise beyond WEDG 2006 or to engage with applicant submissions; the applicant’s assertions are factually incorrect.
- The applicant’s interpretation of Balz and Smyth is erroneous, and recent case law confirms the Board’s lawful approach.
- The Board considered all relevant materials and expert advice on noise impacts, including amplitude modulation, consistent with the Supreme Court’s directions in Balz.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Balz v. An Bord Pleanála [2019] IESC 90 |
Planning authorities must have regard to guidelines; failure to consider submissions that guidelines are outdated excludes relevant considerations; fair procedures require engagement with submissions. |
The Court distinguished the present case from Balz, finding the Board did consider submissions and other relevant materials beyond the 2006 guidelines, thus no exclusion of relevant considerations occurred. |
| Smyth v. Railway Procurement Agency [2010] IEHC 290 |
Planning conditions set standards for permitted environmental effects; Board must determine acceptable noise levels. |
The Court held that while the Board must assess noise impacts, it is not required to dictate methodology or set overarching standards; the applicant’s reliance on Smyth was misplaced. |
| Lanigan & Ors v. Barry & Ors [2008] IEHC 29 |
Planning permission affects the character of neighbourhood and nuisance is determined accordingly; planning consent does not preclude civil action. |
The Court noted that planning permission does not grant immunity from nuisance claims; detailed tort law adjudications are not required at the planning stage. |
| G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418 |
Presumption that submissions and issues recorded as considered by decision-maker have been properly considered unless proven otherwise. |
The Court found no evidence that submissions were disregarded; absence of proof meant the Board’s assertion of consideration stood. |
| Connelly v. An Bord Pleanála [2018] IESC 31 |
Requirement to give main reasons for main issues in planning decisions. |
The Board complied with this standard; extensive submissions do not require exhaustive reasoning on every sub-issue. |
| Webster & Rollo v. Meenacloghspar (Wind) Limited [2024] IEHC 136 |
Planning permission does not preclude civil nuisance actions; reasoning behind permission is a matter of weight. |
The Court confirmed the Board’s approach was consistent with this principle. |
| Joyce-Kemper v. An Bord Pleanála [2020] IEHC 601 |
Burden of proof lies on applicant to show scientific or factual shortcomings in EIA. |
The applicant failed to discharge this burden regarding noise and amplitude modulation issues. |
| Cork County Council v. Minister for Housing, Local Government and Heritage (No. 1) [2021] IEHC 683 |
Same as above; evidential burden in EIA challenges. |
Applicant did not meet evidential threshold to show Board’s EIA was unlawful or inadequate. |
| RAS Medical Ltd v. The Royal College of Surgeons in Ireland [2019] IESC 4 |
Absence of cross-examination limits success on evidential conflicts in judicial review. |
The Court held that evidential conflicts on AM issues could not be resolved in applicant’s favour without cross-examination. |
| Harrington v. An Bord Pleanála [2014] IEHC 232 |
Mere assertion does not create scientific doubt in EIA challenges. |
Applicant’s assertions regarding noise impacts and AM were insufficient to establish doubt. |
| Coyne v. An Bord Pleanála [2023] IEHC 412 |
Similar evidential standards in EIA judicial review. |
Applicant failed to meet evidential burden on noise and AM issues. |
| Grafton Group plc v. An Bord Pleanála [2023] IEHC 725 |
Judicial review is confined to legality, not merits, except for irrationality or disproportionality. |
The Court found no irrationality or disproportionality in Board’s decision on noise standards. |
| Delaney v. Personal Injuries Assessment Board [2024] IESC 10 |
Standards for judicial review and reasonableness. |
The applicant failed to show unreasonableness or illegality in Board’s approach. |
| Jones v. South Dublin County Council [2024] IEHC 301 |
Requirement to give adequate reasons and consider submissions. |
The Board’s reasons met the required standard; no failure to engage substantively with submissions. |
| Salmon Watch Ireland & Ors v. The Aquaculture Licences Appeals Board & Ors [2024] IEHC 421 |
Standards for consideration of submissions and reasoned decisions. |
Board’s approach consistent with legal standards; no failure to consider key issues. |
| Fernleigh Residents Association & Anor v. An Bord Pleanála & Others [2023] IEHC 525 |
Similar procedural and evidential standards. |
Applicant’s complaints on procedural fairness and consideration of submissions were rejected. |
| Power v. An Bord Pleanála [2024] IEHC 108 |
Standards for EIA judicial review challenges. |
Applicant failed to demonstrate inadequacy or unlawfulness of EIA assessment. |
| Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 300 |
Similar evidential burden in EIA challenges. |
Applicant failed to meet evidential burden on scientific issues. |
| Hayes & Anor. v. Environmental Protection Agency & Ors. [2024] IECA 162 |
Evidential standards for environmental judicial review. |
Confirmed that mere assertions do not suffice to establish doubt or unlawfulness. |
| Glencar Explorations plc v. Mayo County Council [2001] IESC 64 |
Duty to have regard to guidelines is subject to a relatively light burden. |
Board properly had regard to guidelines without slavish adherence. |
| McEvoy and Smith v. Meath County Council [2003] IEHC 31 |
Similar principle on having regard to guidelines. |
Consistent with Board’s approach in this case. |
Court's Reasoning and Analysis
The Court examined the applicant’s core grounds of challenge alleging legal error in the Board’s decision to grant planning permission for the wind farm. Central to the analysis was the question whether the Board unlawfully excluded relevant considerations by relying on the 2006 Wind Energy Development Guidelines (WEDG 2006) without properly considering more recent scientific and policy developments, including submissions on amplitude modulation (AM) of wind turbine noise.
The Court found that the Board and its Inspector did consider the 2006 Guidelines as the operative guidelines but also expressly examined other materials such as the 2019 Draft Guidelines, WHO 2018 Environmental Noise Guidelines, British Standard BS 4142:2014, and the Institute of Acoustics Good Practice Guide. The Board’s approach was not a slavish application of outdated standards but a reasoned assessment incorporating submissions and expert evidence from both the applicant and the notice party.
The Court rejected the applicant’s contention that the Board failed to engage with submissions or that it excluded relevant considerations. The voluminous submissions were considered, and the Board provided reasons addressing the main issues, complying with the legal requirement to give reasons for main issues. The Court emphasized that judicial review is confined to legality and not merits, and that the applicant failed to discharge the evidential burden to show irrationality, unreasonableness, or procedural unfairness.
The Court further addressed the argument that the Board should have dictated a noise assessment methodology or set an overarching standard, holding that the Board’s role is to assess the application based on the information provided, not to impose methodologies. The absence of a penalty scheme for amplitude modulation was found to be consistent with expert advice and not unlawful.
Regarding the Environmental Impact Assessment (EIA), the Court found the Board’s assessment complied with statutory requirements, including consideration of noise impacts and amplitude modulation. The applicant failed to provide objective evidence that the EIA was inadequate or that the Board’s conclusion of no significant environmental effects was unreasonable or unlawful.
Finally, the Court noted that planning permission does not confer immunity from civil nuisance claims, and the Board is not required to predict or adjudicate detailed tort law issues at the planning stage. The Court distinguished the present case from Balz v. An Bord Pleanála, where the Board failed to consider submissions on outdated guidelines, finding that here the Board did consider such submissions appropriately.
Holding and Implications
The Court DISMISSED the application for judicial review.
The Board’s decision granting planning permission for the proposed wind farm was found to be lawful, with no exclusion of relevant considerations, no breach of fair procedures, and no inadequacy in the environmental impact assessment. The Court confirmed that the Board complied with its statutory and constitutional obligations, properly considered the submissions and evidence, and acted within its evaluative judgment in balancing competing interests and scientific material.
No new precedent was established. The decision affirms the principle that planning authorities must have regard to guidelines but are not bound to slavishly apply outdated standards, and that judicial review of planning decisions is limited to legality rather than merits. It also clarifies the approach to amplitude modulation issues in wind farm noise assessment and the scope of EIA judicial review challenges.