Nagle View Turbine Aware [No. 2] v An Bord Pleanála (Approved)

Factual and Procedural Background

The Applicant challenged a decision by the Respondent Board concerning the assessment of a wind energy development project. The matter involved the application of wind energy guidelines and the adequacy of the Environmental Impact Assessment (EIA), particularly regarding noise impacts such as amplitude modulation. The High Court had previously dismissed the challenge in a substantive judgment delivered on 1st November 2024. The Applicant subsequently sought leave to appeal, requesting further clarification on several points related to the Board's assessment and the application of established legal principles.

The procedural history includes the opening of the judicial review application on 15th January 2024, grant of leave on 29th January 2024 with liberty to amend grounds, filing of amended grounds on 2nd February 2024, and statements of opposition filed by the Respondent and Notice Party in April and May 2024 respectively. The substantive hearing took place on 22nd October 2024, with judgment reserved and later delivered. Following dismissal, the Applicant filed submissions seeking leave to appeal, which were opposed by the Respondent and Notice Party. The leave to appeal application was heard on 16th December 2024, with judgment reserved thereafter.

Legal Issues Presented

1. Whether the Board conducted a "complete as possible" assessment of noise impacts, including noise character and amplitude modulation, in compliance with the EIA Directive.
2. Whether the Board properly considered the planning and development of the area without assessing or mitigating noise character impacts on nearby sensitive receptors, including the Applicant's members.
3. Whether the Supreme Court decision in Balz v. An Bord Pleanála precludes only in limine dismissal of submissions or has a wider application.

Arguments of the Parties

Applicant's Arguments

• The Board failed to assess the character of noise, including amplitude modulation, and did not consider mitigation measures.
• The Board did not properly consider the planning and development impacts related to noise character on nearby dwellings.
• The Supreme Court's decision in Balz should be interpreted more broadly than as merely precluding in limine dismissals.
• The conflict between noise nuisance and energy production represents a significant public concern, justifying further appellate scrutiny.
• The 2006 Wind Energy Development Guidelines are outdated, creating a policy issue that requires judicial intervention.

Respondent and Notice Party's Arguments

• The Board did assess noise character, including amplitude modulation, and considered mitigation measures; the Applicant failed to prove otherwise.
• The points raised by the Applicant rest on false factual premises and unpleaded grounds.
• The Balz decision was correctly applied and does not require broader interpretation in this case.
• There is no evidential basis demonstrating uncertainty or practical problems caused by the judgment.
• Renewable energy projects are in the overriding public interest, supported by EU law and national policy.
• Further delay caused by appeals prejudices the developer and is not justified by the Applicant's submissions.
• The issue of outdated guidelines is a policy matter for government, not a matter for judicial intervention in this case.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court emphasized that appellate courts serve to clarify points of law that transcend the facts of individual cases and to resolve existing doubts rather than create new ones. The Court reviewed the substantive judgment and found that the Applicant's proposed points of law were based on incorrect factual premises, unpleaded grounds, or vague assertions unsupported by evidence.

The Court noted that the Board did assess noise character, including amplitude modulation, and considered mitigation measures. The Applicant failed to discharge the evidential burden to prove any deficiency or unreasonableness in that assessment. The Court also found that the Applicant's attempt to seek a broader interpretation of the Balz decision was impermissibly abstract and did not relate to the facts or pleadings of this case.

Regarding public interest, the Court acknowledged the significant policy and legal support for renewable energy projects, especially in the context of the climate emergency and geopolitical considerations. The Court highlighted that further delay caused by continued litigation prejudices the developer and is not justified by the Applicant's submissions or evidence. The Court also noted the restrictive impact of recent jurisprudence on awarding costs or damages in environmental litigation, which necessitates restraint in permitting multiple appeals.

Finally, the Court observed that the Applicant's complaint regarding the outdated nature of the 2006 guidelines raised a policy issue beyond the remit of judicial review in this case, particularly as it was not pleaded as a legal ground.

Holding and Implications

The Court DISMISSED the application for leave to appeal.

The direct effect of this decision is to uphold the dismissal of the judicial review challenge, thereby allowing the contested wind energy development project to proceed without further appellate delay. No new legal precedents were established by this ruling. The Court underscored the importance of limiting appeals to genuine points of law of exceptional public importance supported by evidence, especially in the planning and environmental context where certainty and timely development are critical.