The High Court declared void a planning decision for a proposed wind farm near Glenties, Co Donegal, insofar as it purported to grant permission affecting Margaret McCallig’s land. It declined to quash the overall permission, finding that the challenged decision could stand if the peat regeneration area planned for her land was relocated to suitable land within the application boundary.
The judicial review challenged An Bord Pleanála’s February 2011 decision to grant permission, subject to 22 conditions, for a wind farm proposed by P.J. Molloy. Ms McCallig argued that her land had been included in the application without her written consent and that the environmental information, particularly on birds, was inadequate. She also argued that the application failed to assess effects on the area’s Gaeltacht cultural heritage.
Mr Justice Herbert found that Ms McCallig had owned the land since 2005 and had not consented to the development. Part of her property was shown within the application’s red and blue boundary lines. A solicitor’s letter relied on for consent did not identify the landowners it represented or the location of their lands, and the court found it was not an adequate substitute for the written consent required by the planning regulations.
The Board had jurisdiction to consider the consent issue on appeal, the judge found, and acted unfairly by declining to do so. The court also found that the permission’s conditions left the land materially affected: a peat regeneration area on her property was part of the approved peat management plan, despite the omission of nearby turbines.
On the bird surveys, the judge accepted that the Board’s inspector had described them as “far from robust.” However, he held that it was reasonably open to the Board to find the environmental impact statement and supplementary material adequate. He rejected the claim that a habitat management condition had been used to avoid obtaining further information on birds.
The court also rejected the challenge based on the absence of a cultural heritage assessment. Although the site was within a Gaeltacht area and the environmental statement contained no information enabling an assessment of effects on that heritage, the judge found the Board could reasonably decide that further information was unnecessary for this wind farm proposal.
The court declined to quash the Board’s entire February 2011 decision. Instead, it declared the decision void only insofar as it purported to grant permission in respect of, or otherwise affect, Ms McCallig’s land. It reasoned that the peat regeneration area could be relocated to other suitable land within the application boundary. The judgment did not grant a permanent injunction or damages.