Annagh Windfarm Ltd v An Bord Pleanála (Approved)

Factual and Procedural Background

The case concerns an application by Company A for planning permission to construct a wind farm consisting of six turbines and associated infrastructure at a rural site in County Cork. The planning application was submitted to the local planning authority, the council, in December 2021, accompanied by an Environmental Impact Assessment Report (EIAR) and a Natura Impact Statement (NIS). The council requested further information regarding biodiversity and appropriate assessment (AA) issues, including submissions from the National Parks and Wildlife Service (NPWS).

Following the submission of further information and additional reports, the council refused planning permission in December 2022. Company A appealed this decision to the planning board (the board). During the appeal process, the board’s inspector conducted a site inspection and prepared a report including an AA that took into account a submission relating to a nearby solar farm development at Ballyroe, which raised concerns about impacts on Whooper Swan, a species of conservation interest associated with Kilcolman Bog Special Protection Area (SPA).

The board issued a direction in June 2024 purporting to disregard the Ballyroe submission in a non-legally binding note and declined to notify Company A of this submission for comment, despite the inspector’s recommendation to do so. Subsequently, the board refused permission relying on the AA which had taken the Ballyroe submission into account.

Company A instituted judicial review proceedings challenging the board’s decision on grounds including failure to provide an opportunity to comment on the Ballyroe submission and breaches of statutory procedural requirements.

The judicial review proceedings were expedited, with leave granted in September 2024 and a substantive hearing held in December 2024. Judgment was delivered in January 2025.

Legal Issues Presented

1. Whether the board lawfully relied on materials (the Ballyroe submission) that were not made available to Company A and failed to seek submissions or observations from Company A in breach of sections 131 and/or 137 of the Planning and Development Act 2000 and principles of fair procedures.
2. Whether the board complied with its obligations under EU environmental law, including the duty to conduct a complete Appropriate Assessment (AA) consistent with the Aarhus Convention and relevant EU case law.
3. Whether the board correctly applied the test for Appropriate Assessment and had regard to relevant European law instruments such as the Habitats Directive and Renewable Energy Directives.
4. The procedural and substantive implications of the board’s contradictory approach of adopting the inspector’s AA (which considered the Ballyroe submission) while issuing a direction purporting to disregard that submission and not notifying Company A.

Arguments of the Parties

Applicant's Arguments

• The board relied on the Ballyroe submission indirectly through the AA prepared by the inspector, despite not notifying Company A or allowing any submissions on this material, thereby breaching statutory procedural requirements under sections 131 and 137 of the Planning and Development Act 2000 and principles of natural and constitutional justice.
• The Ballyroe submission contained critical information about Whooper Swan distribution and risks that materially affected the AA and the board’s decision to refuse permission.
• Company A had expended significant resources on surveys and should have been given an opportunity to respond to this new material.
• The board’s direction to disregard the Ballyroe submission was non-binding and contradicted the express reliance on the AA in the board’s order, creating an irreconcilable contradiction.
• The board’s failure to notify and seek submissions on the Ballyroe submission vitiates the decision, irrespective of whether the board claims it could have refused permission on other grounds.

Respondent's Arguments

• The board did not rely on the Ballyroe submission in making its decision and refused permission based on the inadequacy of the application materials alone.
• The board’s direction explicitly stated that the decision could be made on the basis of the application and appeal documentation without considering the Ballyroe submission.
• The board contended that no procedural breach occurred as the Ballyroe submission was not determinative and the applicant’s complaint was based on a misunderstanding.
• The board argued that the applicant must demonstrate it would have had something material to say if consulted, which was not shown.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the procedural history and the content of the board’s documents, focusing on the contradiction between the board’s non-binding direction and its final order. The board’s order expressly relied on the stage 2 Appropriate Assessment (AA) carried out by the inspector, which in turn incorporated the Ballyroe submission. However, the board’s direction stated that the Ballyroe submission was disregarded and that the decision was made solely on the basis of application and appeal documentation.

The court found this contradictory on the face of the material, concluding that the board indirectly took the Ballyroe submission into account despite purporting not to do so. This indirect reliance triggered the procedural requirement under section 137(2) of the Planning and Development Act 2000 to notify the applicant and allow submissions on the new matter.

The board failed to provide such notice or opportunity to comment, contrary to statutory requirements and principles of fair procedures. The court rejected the board’s argument that it did not rely on the Ballyroe submission, emphasizing the plain language of the order and the inspector’s AA report.

The court noted that it was not necessary to decide other grounds of challenge because the procedural breach alone was sufficient to invalidate the decision. It also observed that the board’s failure to allow Company A to respond to the Ballyroe submission was prejudicial, as the applicant would likely have provided substantive responses given the importance of the material.

While the court acknowledged that the board might have been entitled to refuse permission on other grounds, it emphasized that this was a complex, fact-specific matter with multiple possible outcomes, and the procedural breach could not be excused on hypothetical considerations.

Holding and Implications

The court issued an order of certiorari, quashing the board’s decision dated 27 June 2024 refusing permission for the wind farm development.

The matter was remitted to the board for reconsideration in accordance with law, specifically requiring compliance with procedural obligations including proper notice and opportunity to comment on all relevant submissions such as the Ballyroe submission.

The direct effect of this decision is to invalidate the board’s refusal and require a fresh decision that respects statutory procedural rights. No new precedent beyond the application of existing statutory provisions and principles of procedural fairness in environmental planning decisions was established. The judgment underscores the importance of transparency and procedural fairness in the board’s consideration of environmental assessments, particularly where new material emerges during the appeal process.