100 Meter Tall Group & Ors v An Bord Pleanala (Approved)

Factual and Procedural Background

The developer obtained planning permission for a single 800kW wind turbine to serve a factory located approximately 2 km north of Limerick City, County Clare. The turbine was constructed 36 metres outside its originally permitted position. Following an environmental impact assessment (EIA) preliminary determination which ruled out the need for EIA screening, retention permission was granted for the adjusted turbine location. The original permission was granted in 2010, extended in 2015, and the turbine was constructed in 2021. A retention application was made to the local planning authority in March 2022, revised in September 2022, and retention permission was granted subject to conditions in September 2022. The applicants appealed this decision to the planning appeals board, which appointed an inspector who conducted a site inspection and recommended permission subject to conditions. The board granted permission in October 2023. The turbine began operation in January 2024 and has been fully operational since June 2024.

Judicial review proceedings were initiated in December 2023 with leave granted in January 2024. The case proceeded through various procedural steps including affidavits, written submissions, and directions. The hearing occurred in January 2025, with judgment reserved pending consideration of further evidence and submissions related to a recent decision. The applicants sought multiple reliefs including quashing the retention permission, declarations of legal rights, stays, discovery orders, and costs.

Legal Issues Presented

1. Whether the grant of retention permission was precluded by the prior EIA preliminary examination and related statutory provisions, including section 34(12) of the Planning and Development Act 2000 (as amended).
2. Whether the planning appeals board and the local authority erred in law or acted ultra vires in relation to adherence to Wind Energy Development Guidelines (2006 and draft 2019), and adequacy of reasons given.
3. Whether the board erred in law or acted irrationally concerning noise and shadow flicker impacts.
4. Whether the board lawfully granted permission without a detailed Radar Impact Assessment despite observations from the Irish Aviation Authority.
5. Whether the board and local authority failed to carry out required screening determinations for EIA and Appropriate Assessment (AA) under EU and domestic law.
6. Whether the doctrine of project-splitting was properly considered and applied.
7. Whether public participation requirements under Article 6(5) of the EIA Directive were met, including electronic accessibility of reports.
8. Whether the Appropriate Assessment was defective, lacking sufficient scientific rigor and proper consideration of connectivity, cumulative effects, and submissions made.

Arguments of the Parties

Applicants' Arguments

• The board's decision was invalid and ultra vires for failing to have regard to the 2006 and draft 2019 Wind Energy Development Guidelines and for inadequate reasons regarding departure from those guidelines.
• The board erred in law and acted irrationally in concluding no adverse effects from noise and shadow flicker, failing to address applicants' submissions on these issues.
• The board failed to address public observations adequately and gave insufficient reasons for rejecting submissions, including jurisdictional challenges.
• The board unlawfully granted permission without a detailed Radar Impact Assessment despite IAA requests.
• The local authority lacked jurisdiction under section 34(12) because an EIA screening determination and/or Appropriate Assessment was required, and the retention permission was invalid on that basis.
• The board failed to conduct or properly consider EIA screening and Appropriate Assessment, including cumulative effects with existing factory, grid connections, and nearby infrastructure.
• The board failed to consider project-splitting, unlawfully treating parts of the development in isolation.
• The decision breached Article 6(5) of the EIA Directive by not making Noise and Shadow Flicker Reports electronically accessible to the public.
• The Appropriate Assessment was defective, containing lacunae and failing to dispel all reasonable scientific doubt regarding effects on several European sites and species, including the Hen Harrier.
• The condition permitting post-consent agreement on facilities to prevent interference with communications contravenes relevant EU case law.

Board's Arguments

• The board complied with the legal obligations concerning the Wind Energy Development Guidelines, giving adequate consideration to the 2006 guidelines and correctly treating the 2019 guidelines as draft with no binding force.
• The board's conclusions on noise and shadow flicker were open to it based on evidence including assessment reports and conditions mitigating impacts.
• The board provided main reasons addressing public submissions and jurisdictional issues, including the application of section 34(12), which did not preclude retention permission because no EIA screening determination or AA was required.
• The absence of a detailed Radar Impact Assessment was addressed adequately by conditions and prior assessments, with no legal obligation to require a further assessment.
• The board and local authority lawfully assumed jurisdiction as no EIA screening determination or AA was required, consistent with preliminary examination conclusions supported by the evidence.
• The doctrine of project-splitting does not apply; the development was assessed in context, and no evidence showed an attempt to circumvent EIA obligations.
• The complaint about electronic accessibility of reports relates to the local authority, which is not a party; the board is not responsible and no prejudice to applicants was shown.
• The Appropriate Assessment screening was properly conducted with reasons sufficient to dispel reasonable scientific doubt, supported by expert evidence and the materials before the board.
• The condition permitting post-consent agreement on interference prevention facilities is lawful and consistent with EU jurisprudence.

Notice Party's Arguments

• The notice party generally supports the board's position on all grounds, emphasizing the adequacy of consideration given to guidelines, noise, shadow flicker, radar impact, EIA screening, Appropriate Assessment, and project-splitting.
• They argue the applicants failed to particularize grounds adequately as required by procedural rules.
• The notice party contends that connectivity to the factory is established and that no connection to the national grid is proposed, negating certain claims.
• The notice party points out the absence of evidence undermining the board's conclusions and that the complaints about electronic accessibility relate to a non-party.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed examination of the applicants' grounds of challenge, applying established principles of planning law, judicial review procedure, and EU environmental law. It emphasized the stringent pleading requirements under Order 84 Rule 20(3) RSC, noting the applicants frequently failed to specify facts or matters relied upon to support their claims. The court rejected the applicants' contention that the grant of retention permission was precluded by the preliminary EIA examination, holding that a valid preliminary examination ruling out the need for EIA screening meant section 34(12) did not apply to bar retention permission.

Regarding the Wind Energy Development Guidelines, the court found the board had properly considered the 2006 guidelines and lawfully treated the 2019 draft guidelines as non-binding. The board's conclusions on noise and shadow flicker impacts were supported by evidence and expert reports, and the imposition of conditions addressed these concerns.

The court found no legal obligation for a detailed Radar Impact Assessment given the proximity of the Woodcock Hill Radar station, noting prior assessments and conditions adequately addressed aviation safety. The doctrine of project-splitting was held not to apply, as the turbine was connected solely to the factory, and the application was properly considered in context.

On EU environmental law issues, the court accepted that the Appropriate Assessment screening was conducted in accordance with the Habitats Directive and domestic law, with no reasonable scientific doubt demonstrated by the applicants. The court noted that the board's reasons were sufficient to dispel doubt, consistent with the recent Eco Advocacy decision.

The complaint about breach of public participation obligations under Article 6(5) of the EIA Directive was dismissed as it related to the local authority's website, which was not a party to the proceedings, and no prejudice was shown.

Overall, the court found the applicants failed to establish any specific illegality warranting certiorari, with most challenges amounting to merits-based disagreements or inadequately pleaded assertions unsupported by evidence.

Holding and Implications

The court DISMISSED the judicial review proceedings challenging the grant of retention permission for the relocated wind turbine.

The direct effect of this decision is that the retention permission granted by the planning appeals board remains valid and operative, allowing the turbine to continue functioning as authorised. No new precedent was established, and the judgment reinforces the importance of strict pleading standards in judicial review, the distinction between preliminary examination and EIA screening, and the application of EU environmental law principles in the context of retention permissions. The decision also clarifies that complaints about procedural defaults by non-parties (such as local authorities) do not found relief in judicial review against the board.