The High Court quashed two An Bord Pleanála decisions granting permission for wind turbine developments in County Roscommon and sent the appeals back to the Board for reconsideration.
In a supplemental judgment dated 18 September 2014, Ms Justice Finlay Geoghegan set out the final orders following her principal judgment of 25 July 2014. The court ordered certiorari of the Board’s decisions in appeals PL20.239759 and PL20.241069, made on 9 and 13 September 2013 respectively.
The court directed the Board to carry out a lawful appropriate assessment under Article 6(3) of the Habitats Directive in each appeal, reach a determination and give reasons, in accordance with the principal judgment. The supplemental judgment explains that the original decisions were quashed because the Board had not conducted an appropriate assessment meeting legal requirements, its conclusions on effects on European sites were not lawfully made as part of such an assessment, and it had not given legally adequate reasons. Without a lawful determination, the Board lacked jurisdiction to grant permission.
The central dispute at the further hearing was whether the court should prescribe steps for the Board’s reconsideration. The applicant and the Department of Arts, Heritage and the Gaeltacht sought a direction allowing all parties to make another submission before the Board reassessed the appeals. They also raised the possibility that information, including a bird survey supplied in the Phase 1 appeal, could be considered in the Phase 2 appeal.
The Board argued that the procedure should generally be left to its statutory discretion. The judge agreed that the court should avoid prescribing the precise process, while holding that fair procedures required a minimum opportunity for submissions. The Board must invite all parties to each appeal to make a further submission before conducting the new appropriate assessment and determining the appeal. It remains for the Board to decide whether to seek further information or submissions under its statutory powers.
If the Board seeks further information in either appeal, it must state whether it will consider that information in that appeal alone or in both appeals, and give any notice required by the Planning and Development Act 2000.
The applicant was also awarded costs against the Board, including reserved and discovery costs, to be taxed if the parties could not agree. The Board told the court it would not seek a certificate permitting an appeal. The judgment did not decide the appeals anew or grant fresh planning permission; it remitted them for the Board’s reconsideration under the specified directions.