The High Court has refused the North Kerry Wind Turbine Awareness Group a certificate to appeal a judgment that rejected its challenge to planning permission for a ten-turbine wind farm in County Kerry.
In a judgment delivered on 2 May 2017, Mr Justice Brian J. McGovern refused certification on all five proposed points of law. The application followed the court’s 9 March 2017 refusal to quash An Bord Pleanála’s decision of 25 July 2016 granting permission to Stacks Mountain Windfarm Limited.
The court said the statutory test required a point of law of exceptional public importance and that an appeal be desirable in the public interest. Both requirements had to be met, and the proposed point had to arise from the High Court judgment.
The proposed questions concerned assessment of the wind farm’s grid connection; whether the Board had adopted an inspector’s initial screening as its full appropriate assessment; the standard for recording an environmental impact assessment; the Board’s power to grant permission involving a material contravention of a development plan; and the relationship between environmental impact assessment authorities and appropriate assessment.
On the grid connection, the judge said the issue had not been substantially argued at the original hearing and that the application did not reflect the arguments made. He said the broader question of assessing the grid connection as part of the project had been addressed in earlier case law and that the law was not considerably uncertain.
On appropriate assessment, the court said its earlier judgment found that the Board conducted its own stage-two assessment after accepting the inspector’s substantive conclusions. The proposed appeal point therefore rested on a misinterpretation of that finding.
The judge also found no qualifying uncertainty in the law on recording environmental impact assessments or on material contraventions of development plans. He said the relevant legislation clearly set out when the Board could grant permission in such circumstances and what reasons it had to give. On the fifth point, he said the earlier judgment had not suggested that environmental impact assessment standards displaced the standards for appropriate assessment.
The court refused a certificate on each ground. This decision concerned permission to appeal; it did not reopen or alter the earlier refusal to quash the planning permission.