The Supreme Court dismissed An Bord Pleanála’s appeal over permission for a wind farm in Clare, finding that the Board’s appropriate assessment did not contain the scientific findings required to support the permission. The Court proposed hearing further submissions on the precise order, including whether the matter should be referred back to the Board.
The case concerned a development initially proposed as six turbines. Clare County Council refused permission in July 2011. The developer appealed, and after the Board sought further information, including a Natura Impact Statement, it granted permission in May 2014 for a revised four-turbine scheme.
Kathleen Connelly challenged the Board’s decision by judicial review. The High Court quashed the permission, finding shortcomings in the Board’s reasons and its recording of environmental and appropriate assessments. The Board appealed directly to the Supreme Court.
In a judgment delivered by Chief Justice Frank Clarke on 17 July 2018, the Supreme Court held that the Board’s reasons for granting permission were adequate under national law. The decision, read with the inspector’s report and the further information provided, explained why the Board disagreed with the inspector’s concerns about residential amenity, visual impact, wildlife, water pollution and ground stability.
The Court also found that the available decision documents gave interested parties enough information to assess whether an environmental impact assessment had been carried out. It reversed the High Court’s conclusions on those issues and on the adequacy of the Board’s general reasons.
The appropriate assessment was different. The Board had concluded that the development would not adversely affect the integrity of two protected European sites, subject to mitigation. But the Supreme Court said that stating the legal conclusion and listing considerations such as distances, revised layouts and mitigation did not amount to the precise, complete scientific findings needed to show that no reasonable scientific doubt remained about potential effects on the sites.
The Court said those findings were a necessary condition for the Board to have authority to grant permission where an appropriate assessment was required. It held that the permission had to be quashed on that ground, while dismissing the Board’s appeal on narrower grounds than those relied on by the High Court. The Court had not yet settled the form of its order or whether the matter would return to the Board.