The High Court has refused a request by Friends of the Irish Environment (FIE) to revisit its 2015 dismissal of a judicial review concerning planning permission for the continued operation of a peat and biomass co-fired power plant at Clonbullogue, Co Offaly.
In a judgment delivered on 14 October 2016, Mr Justice White said there were no exceptional circumstances requiring the court to reopen its earlier decision. The court therefore left the 9 October 2015 judgment unchanged. It did not reconsider or quash the planning permission in this application.
FIE had originally challenged An Bord Pleanála’s November 2013 decision granting permission to Edenderry Power Limited for continued use and operation of the plant. Its grounds included claims that peat extraction associated with the plant had not been properly assessed under the EU Habitats Directive, including in relation to effects on European conservation sites.
After the original judgment, FIE asked the court to revisit it. The group argued that the Board had not considered peat extraction as part of the project or in combination with it, and had not screened extraction for possible effects on protected sites. It also said the court had wrongly placed an evidential burden on FIE without giving it an opportunity to address that issue.
Justice White said FIE had not identified an error of fact in the original judgment. He accepted that the earlier judgment had not specifically addressed whether the Board was required to screen peat extraction. However, he found that the burden of proof had been raised in the Board’s written opposition, legal submissions and oral argument at the original hearing.
The judge noted that the Board’s screening assessment concerned the operation of the power plant, not peat extraction, a distinction the Board had acknowledged. He said the original decision had turned on FIE’s failure to provide primary evidence supporting its assertions about a causal link between the plant, peat extraction and effects on European sites downstream, about 14 kilometres away.
The court applied the high threshold for reopening a final judgment, which can be revisited only in exceptional circumstances. Justice White said the request was made with the benefit of hindsight, and that the court had exercised its discretion fairly and reasonably when dismissing the original application. The request to alter that judgment was refused.