The Supreme Court dismissed an appeal by Derrybrien Development Society Limited over tree removal at the Derrybrien wind farm, refusing the remedies sought under section 160 of the Planning and Development Act 2000. The Court said it would refuse the motion in all the circumstances and dismissed the appeal.
The Society had asked the High Court to restrain the respondents from continuing what it alleged was unauthorised development, and to order restoration of the land, including replanting trees and restoring drainage channels. The High Court refused that motion in June 2005. The Society appealed, seeking to overturn that decision and obtain the injunction and restoration orders.
The Supreme Court’s judgment, delivered by Chief Justice Denham on 16 October 2015, focused on the Court’s discretion under section 160. It said that discretion required consideration of the individual circumstances, including the applicant’s conduct, delay, the respondents’ position and the public interest.
The Court noted that the appeal was not filed until 2009, that the wind farm had been fully operational since January 2006, and that no request had been made for the appeal to receive priority. It also considered related judicial review proceedings brought by the Society in 2005. Those proceedings were settled after a judge found for the Society; the settlement included a payment of €265,000 by the wind farm. The Supreme Court said the related litigation, while not a bar to this appeal, raised a query about the Society’s bona fides in pursuing it.
The Court recorded that the European Court of Justice had found in 2008 that Ireland failed to meet its obligations under the Environmental Impact Assessment Directive in relation to the Derrybrien development. It also noted that the respondents had acted in good faith believing they were complying with planning permissions, and that the wind farm was not responsible for any defect in those permissions.
The Supreme Court said an order restraining deforestation would be futile because the forest had already been cleared. It also noted that counsel for the Society gave no clear response when asked whether re-afforestation was sought. The Court expressly approached the appeal on the assumption that the planning permissions might not have fully covered deforestation, but said the papers did not provide a clear picture of the situation.
It did not decide the underlying planning-permission issue on that assumption. Instead, it exercised its discretion to refuse the remedies and dismissed the appeal.