The High Court has dismissed a judicial review challenge to An Bord Pleanála’s decision to grant planning permission for a 22-turbine wind farm in County Tipperary.
Edward Buckley and Edel Grace sought to quash the permission granted to Ecopower Developments Ltd on 12 August 2014. Mr Justice Cregan, in a judgment delivered on 29 July 2015, rejected all three grounds of challenge.
The applicants argued that Buckley’s withdrawal of landowner consent before the planning decisions invalidated the application. He had signed a consent letter before Ecopower applied in January 2013, then wrote to the planning authority in January 2014 withdrawing permission for development on his land. He said he objected to a proposed access road and drainage works there.
The court held that the regulations required the owner’s written consent to make the planning application. Buckley had given that consent before the application was lodged, so its later withdrawal did not invalidate the application or remove the Board’s jurisdiction to decide the appeal. The judge distinguished permission to apply from agreement to carry out works on the land.
The developer’s affidavits said the proposed 75-metre road section and associated drains could be omitted, with turbine access available through other approved roads. Buckley disputed that the scheme could proceed as proposed. The judge did not decide whether omitting the road would be an immaterial deviation or require a planning modification. He said the developer could not build on Buckley’s land without his consent and would have to reconfigure the road to avoid it.
The applicants also argued that the Board had failed to carry out an environmental impact assessment because its decision said the Inspector’s report was “noted” rather than “adopted”. The judge found that the Board had adopted the report in substance: it granted permission generally in accordance with the Inspector’s recommendation and imposed the same 25 conditions, subject to a minor amendment.
On the third ground, the applicants contended that the Board had not made the required appropriate assessment under the Habitats Directive. The judge again found that, in substance, the Board had adopted the Inspector’s assessment and determined that the project would not adversely affect the integrity of a European site. The Inspector had considered a Department submission raising concerns about exceptional rainfall and drainage effects.
The court dismissed the challenge. It did not rule on whether Ecopower could implement every part of the permission or on what changes might be needed to avoid Buckley’s land.