The High Court has quashed An Bord Pleanála’s 2019 permissions for a wind farm at Terelton, Co Cork, and an associated electricity substation, and remitted both appeals to the Board for decisions in accordance with law.
In a judgment delivered on 17 April 2020, Mr Justice Denis McDonald ruled that remittal was just and fair. The Board had consented to certiorari after the Supreme Court’s decision in *Balz v An Bord Pleanála*, which found an error in the Board’s treatment of submissions that the 2006 Wind Energy Development Guidelines were outdated. The applicant, Barna Wind Action Group, agreed the permissions should be quashed but opposed sending the appeals back to the Board.
The group argued that the applications dated from 2014, that the environmental information might no longer reflect local conditions and that changes to the EU environmental impact assessment regime made it inappropriate to reconsider the applications under earlier rules. It also raised concerns about public participation and wind farm noise. The developer argued that it would be unfair to require a fresh planning process when the Board, rather than the developer, had made the errors.
The judge weighed those concerns against the developer’s potential prejudice and the need to avoid repeating a planning process that had been lawful up to the point of the Board’s error. He noted that the applicant had not pleaded that the 2014 environmental impact statement was deficient or out of date. He also observed that the applicant’s detailed submissions about noise would have to be addressed by the Board on remittal.
The judgment did not decide which environmental assessment regime would govern the remitted appeals. The judge said that question required more extensive legal argument and would have to be considered by the Board, whose eventual decision could be challenged. He also did not order the Board to obtain updated environmental material. Instead, he recommended that it seek further material about changes in the receiving environment since the environmental statement was prepared. If significant additional information is received, the judgment said, public notice and an opportunity to make submissions would be required.
The court quashed both Board decisions dated 2 April 2019 and remitted their subject matter to the Board. It indicated that the applicant was entitled to its costs of the proceedings, excluding the remittal application, with reserved costs included; any dispute over those costs was to go to the Legal Costs Adjudicator. The judge invited written submissions if any party objected to the proposed grounds for certiorari and directed parties to address the costs of the remittal application if they could not agree.