The High Court granted An Bord Pleanála leave to appeal a judgment that quashed planning permission for a windfarm development. It certified questions of exceptional public importance for an appeal to the Court of Appeal, while giving applicant Peter Sweetman time to consider whether to seek leave to cross-appeal.
The decision, delivered by Mr Justice Humphreys on 26 October 2021, followed his earlier judgment in Sweetman v An Bord Pleanála (No. 1), which quashed the board’s permission for Bord na Móna Powergen Limited to build the development. The current hearing concerned leave to appeal that decision; it did not determine the appeal itself.
The judge rejected the board’s characterisation of the earlier ruling as rejecting design envelopes altogether. He said a limited, context-specific degree of flexibility could be permissible. As an illustration only, he said a variation of about 10% either side of a mean turbine height might have fallen within that flexibility on the evidence in this case. He stressed that the figure was not prescriptive and that the question would depend on the facts, including visual impact.
The permission at issue allowed turbine design details to be agreed later with the planning authority, within stated maximum limits and a range in the application documents. The judge said the application did not provide a meaningful range and allowed outcomes as different as a one-metre turbine or one reaching the maximum height. He also maintained that the board had not assessed the range of possible options, but only a worst-case scenario.
The judge considered whether a “typical” design could be treated as binding on the developer. The board argued in its leave submissions that the developer could not substantially deviate from such a design, but the judge described that as a new argument that had not been raised at the hearing. He also said it conflicted with evidence that the designs could change later. He certified questions about whether the board could advance that argument on appeal and, if so, whether it was legally correct.
The certified questions also address whether a variable design application can go beyond a reasonable degree of flexibility or create a genuine planning issue after consent, and whether the board must assess the full range of options rather than only the worst case. The judge said the questions were framed on the provisional assumption that EU law added nothing, as the European law issues had not been reached.
The order granted the board leave to appeal and certified the questions collectively as raising exceptional public importance. The judge proposed that the matter return to the next Monday List so the court could be told whether Mr Sweetman intended to seek leave to cross-appeal. He also suggested the board consider seeking a direct appeal to the Supreme Court; that suggestion was not an order.