North Westmeath Turbine Action Group & Anor v An Bord Pleanala & Anor, Sweetman v An Bord Pleanala & Anor (Approved)

Factual and Procedural Background

These judicial review proceedings arise from two related cases challenging a decision of the first named respondent to grant planning permission for a development comprising a 13 turbine wind farm and associated works located approximately 2.5 kilometres north of the village of Coole, County Westmeath. The applicants sought declarations that the decision contravened the Planning and Development Act 2000, the Environmental Impact Assessment Directive (2014/52/EU), and the Habitats Directive (92/43/EEC).

One applicant, referred to as Mr. Sweetman, withdrew certain claims against the State respondents during the hearing, resulting in the striking out of his application against those respondents. The other applicants, collectively referred to as the Action Group, sought leave to amend their proceedings to include declarations regarding the transposition of the Directives but were refused such leave, and their case against the State respondents was dismissed.

The proposed development includes construction of 13 wind turbines with foundations, an on-site electrical substation, a temporary construction compound, underground electrical and communications cabling connecting turbines to the substation, new and upgraded site access roads, drainage works, excavation of a borrow pit, a new link road between two regional roads, junction improvement works at two locations, and associated siteworks including tree felling. The windfarm site covers approximately 439 hectares, much of which is commercial peatland and fringe commercial forestry. The nearest village is Coole, 2.5 km south, with 12 houses located within one kilometre of the turbines.

The developer did not apply for planning permission for the national grid connection, which was to be subject to a separate application. However, the Environmental Impact Assessment Report (EIAR) and Natura Impact Statement (NIS) submitted included details of a proposed grid connection route spanning 26 kilometres to a substation near Mullingar. The Board assessed the entire project, including the grid connection, in accordance with the High Court judgment in O'Grianna v An Bord Pleanála which held that a windfarm and its grid connection constitute a single integrated project for environmental impact assessment purposes.

The developer initially applied for permission to Westmeath County Council in October 2017, which refused permission due to conflict with a County Development Plan policy (P-WIN6) stipulating mandatory minimum separation distances between turbines and residential dwellings. The developer appealed, and the Inspector recommended permission subject to conditions. The Board granted permission on 26 March 2019, subject to nineteen conditions, which is the decision challenged in these proceedings.

Legal Issues Presented

1. Whether the Board's decision to grant planning permission complied with the requirements of the Environmental Impact Assessment Directive, specifically regarding the inclusion and public notification of the grid connection as part of the integrated project.
2. Whether the Board and Inspector properly considered the requirements of the Habitats Directive, including the adequacy of the Appropriate Assessment and screening of European Sites potentially affected by the development.
3. Whether the particulars, plans, drawings, and consents submitted with the application complied with statutory requirements so as to confer jurisdiction on the Board to consider the application.
4. Whether the Board properly assessed the potential impacts on bats, including the adequacy of bat surveys and the consideration of relevant guidelines.
5. Whether the Board properly assessed the impacts on birds, including the adequacy of bird surveys and the scope of species considered in the Appropriate Assessment.
6. Whether the Board lawfully exercised its discretion to grant permission notwithstanding material contravention of the County Development Plan policy P-WIN6.
7. Whether the conditions attached to the planning permission were lawful, sufficiently precise, and complied with public participation requirements.
8. Whether the Board failed to consider cumulative environmental effects, including those related to the Greenwire project and ongoing commercial peat extraction activities on or near the site.

Arguments of the Parties

Applicant (Mr. Sweetman)

• Asserted that the Board failed to request necessary information identified by the Development Applications Unit (DAU) of the Department of Culture, Heritage and the Gaeltacht.
• Claimed inadequacy of bat surveys, particularly failure to survey high-flying species such as the Leisler Bat, and failure to consider updated bat survey guidelines published in 2019.
• Alleged failure to consider the effects of ongoing commercial peat extraction and associated risks such as bog slippages.
• Contended that the Board failed to consider reasonable alternatives, including the use of lower turbines in compliance with County Development Plan policy.
• Asserted that the Appropriate Assessment was flawed, particularly in relation to screening and assessment of certain Special Protection Areas (SPAs) and bird species.
• Claimed that the Board erred in law and acted irrationally in its environmental and appropriate assessments.

Applicant (Action Group)

• Contended that the particulars, maps, plans, and drawings submitted were inadequate and non-compliant with statutory requirements, including absence of landowner consents for all relevant lands.
• Asserted that the grid connection route was only indicative and insufficiently defined, preventing a valid cumulative environmental impact assessment and violating the prohibition on project splitting.
• Claimed that public notices failed to reference the grid connection or its location, thereby infringing the Environmental Impact Assessment Directive's public participation requirements.
• Argued that the Board erred in applying outdated Wind Energy Development Guidelines (2006) which do not contemplate turbines of the proposed scale.
• Claimed that certain conditions imposed were void for uncertainty, impermissibly delegated decision-making, and excluded public participation in subsequent approval processes.
• Asserted that the project is part of a larger Greenwire project and that the Board failed to consider cumulative effects of the wider project.
• Alleged that the project unlawfully relies on unauthorised commercial peat extraction works and associated structures, and that the Board lacked jurisdiction to grant permission in such circumstances.

Respondents and Notice Parties

• Submitted that the Board and Inspector properly considered all relevant submissions, including those of the DAU, and that the EIAR and NIS contained sufficient information to perform the required assessments.
• Asserted that the grid connection was properly included in the environmental impact assessment as an integrated project component, although planning permission for it was to be sought separately.
• Maintained that the public notices complied with statutory requirements for the planning application and that public notification of the grid connection, not being part of the application, was not required.
• Argued that the drawings and plans, including typical turbine specifications and narrative descriptions, complied with regulatory requirements and were sufficient for assessment purposes.
• Contended that the conditions imposed were lawful, sufficiently precise, and that subsequent agreement between developer and planning authority on technical details is a recognized and proper practice.
• Denied that the project forms part of the Greenwire project for planning purposes and submitted that cumulative effects were properly considered with existing and approved developments.
• Denied that the Board erred in relation to commercial peat extraction activities, which were unrelated third party activities and properly considered only as part of cumulative impact assessment.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed and structured analysis of the issues raised by the applicants, applying established legal principles and precedent. It emphasized that the planning authority and An Bord Pleanála possess expertise and discretion in assessing planning applications and environmental impact assessments, and the court's role is limited to reviewing decisions for irrationality or failure to consider relevant matters.

The court recognized the fundamental principle established in O'Grianna that a windfarm and its grid connection constitute a single integrated project for the purposes of environmental impact assessment, requiring a single comprehensive assessment including public notification of the entire project.

The court found that the Board's public notice failed to mention the grid connection or its route, which spanned 26 kilometres and 21 townlands, while providing detailed description of the windfarm and ancillary works limited to eight townlands. This omission meant that the public was not properly informed of the full scope of the environmental impact assessment, violating Article 6.2 of the EIA Directive and corresponding statutory provisions. The court held that this failure was not a mere procedural defect but fundamental, rendering the environmental impact assessment invalid and depriving the Board of jurisdiction to grant permission. The decision was therefore quashed on this ground.

Regarding the adequacy of information on the grid connection, the court held that although the route was indicative and not final, the Board and Inspector had sufficient information to perform a valid environmental impact assessment of the integrated project. The absence of a definitive route did not preclude assessment, consistent with precedent.

The court analyzed the adequacy of plans and drawings and found that the use of typical turbine drawings with maximum dimensions, supported by detailed narrative descriptions in the EIAR, satisfied statutory requirements. It rejected the claim that individual site-specific turbine drawings were required at the planning stage, recognizing the practicalities of evolving turbine technology and procurement processes.

In relation to the Habitats Directive and Appropriate Assessment, the court found that the Inspector and Board properly identified and assessed relevant European sites and qualifying species, including consideration of species not listed in statutory instruments where appropriate. The court accepted the Inspector's reasoned conclusions that the project would not adversely affect the integrity of any European site.

The court addressed the claims relating to bats and birds, concluding that the Board had regard to relevant submissions and guidelines, including the DAU's observations on bat survey limitations. The absence of reference to updated 2019 bat guidelines, published after the Inspector's report and after the Board's decision, did not constitute an error. The assessments of bird impacts, including collision risk and displacement, were found adequate and rationally supported.

Claims relating to commercial peat extraction activities on the site were considered. The court held that the ongoing peat extraction was unrelated to the developer's application for the windfarm and ancillary works, which did not seek to legalize or continue peat extraction. The Board properly considered cumulative impacts with such activities. Allegations that the project unlawfully relied on unauthorised peat extraction structures were rejected as lacking evidential basis and irrational.

The court examined the conditions attached to the permission and found them lawful, sufficiently precise, and consistent with established principles allowing certain technical details to be agreed post-consent between the developer and the planning authority. The court rejected submissions that such conditions unlawfully delegated decision-making or excluded public participation, noting that public participation had occurred at the planning application stage when all options were open.

Regarding the claim of material contravention of the County Development Plan policy P-WIN6, the court noted the Board's lawful exercise of discretion under s.37(2)(b)(iii) of the Planning and Development Act 2000 to grant permission having regard to national and regional planning policies and strategic importance of renewable energy targets.

Finally, the court found no basis to require a reference to the Court of Justice of the European Union under Article 267, as all legal issues were capable of determination on the materials and legal authorities before the court.

Holding and Implications

DISMISSED the application brought by Mr. Sweetman, as none of his grounds were made out.

GRANTED the application brought by the Action Group on the sole ground that the Board failed to comply with the public notification requirements of the Environmental Impact Assessment Directive by omitting any reference to the grid connection element of the integrated project in the public notices.

The Board's decision to grant planning permission for the windfarm was quashed for want of jurisdiction due to the invalid environmental impact assessment process caused by defective public notification.

The court emphasized that compliance with the Environmental Impact Assessment Directive, including public participation requirements, is mandatory and fundamental to the validity of planning decisions involving projects likely to have significant environmental effects.

No other grounds of challenge were upheld, and the court made clear that no new precedent was set beyond the application of established principles, particularly the O'Grianna rule on integrated projects and the fundamental importance of public notification of the entire project under assessment.

The court reserved the form of order, costs, and further matters for subsequent hearing.