The High Court rejected a judicial review challenge by the North Kerry Wind Turbine Awareness Group to An Bord Pleanála’s permission for a ten-turbine wind farm in County Kerry, finding that the Board’s decision was clear, properly reasoned and made in accordance with law.
Mr Justice Brian J. McGovern delivered judgment on 9 March 2017. The group had been granted leave to seek certiorari quashing the permission, which the Board issued on 15 July 2016 to Stacks Mountain Windfarm Limited. Kerry County Council had refused the planning application in October 2014, and the company appealed that refusal.
The group argued that the Board had failed to carry out or properly record an appropriate assessment of effects on European sites, had failed to carry out or record an environmental impact assessment, and had not properly addressed a material contravention of the Kerry County Development Plan.
The judge found that the Board had carried out an appropriate assessment using the Natura Impact Statement, revised assessment material, submissions and inspector’s reports. The Board’s decision recorded its conclusion that, with the proposed mitigation measures, the wind farm would not adversely affect the integrity of the Lower Shannon Special Area of Conservation or the Stacks to Mullaghareirk Mountains, West Limerick Hills and Mount Eagle Special Protection Area. The judge found no information gap of the kind identified in earlier case law.
On environmental assessment, the court noted that the original environmental impact statement was supplemented after the Board requested further information, including an assessment of the grid connection. The group’s challenge focused on noise. An inspector initially recommended refusal over noise at sensitive receptors but later changed his view after reconsidering the applicable wind-energy guidelines. The judge held that the Board could adopt the inspector’s later conclusion and that the assessment could be understood from the Board’s decision and the documents it relied on.
The court also rejected the challenge concerning development-plan objective EP-12, which restricted wind farms in designated areas until specified existing permissions had been built or expired and cumulative effects assessed. The inspector considered the proposal a material contravention. The judge said the Board’s decision explained why it granted permission despite that conflict, including its view that the objective conflicted with other county and national policies and would create uncertainty. Section 37(2) applied in specific circumstances where a planning authority refused permission on material-contravention grounds; that had not happened here.
The judge dismissed the remaining challenge to the Board’s approach to a Stage 2 appropriate assessment, describing it as a technical point without substance. He concluded that the group was not entitled to certiorari on any of the grounds raised.