The High Court has certified three points of law for appeal by People Over Wind in its challenge to An Bord Pleanála’s permission for the Cullenagh Wind Farm. The questions concern restoration objectives, scientific evidence and mitigation measures in an appropriate assessment under the Habitats Directive.
Mr Justice Haughton’s 19 June 2015 judgment followed the court’s substantive judgment of 1 May 2015. Under section 50A(7) of the Planning and Development Act 2000, leave to appeal could be granted only if the points involved exceptional public importance and an appeal was desirable in the public interest. The judge said the certification was limited to the appropriate assessment decision.
On restoration, the certified question asks whether the Board had to ensure that the development would not adversely affect an objective to restore a protected habitat and species from unfavourable to favourable conservation status. The relevant species was the Nore Freshwater Pearl Mussel, in a candidate Special Area of Conservation outside the development site. The judge considered the legal question novel and said clarification could affect other appropriate assessments.
The second point asks what obligation, if any, the Board had to seek or obtain the best scientific evidence. It also asks whether the scientific material before the Board about the mussel could be treated as the best available, whether the High Court could consider additional evidence in an affidavit from Dr Evelyn Moorkens, and whether that evidence showed a gap serious enough to quash or remit the Board’s decision.
The third point concerns how far details of mitigation can be left for agreement after planning consent when measures may avoid harm to a European site. The judgment referred to a condition requiring that “no silt whatsoever” be carried from the site in surface water. The judge said the legal position on leaving mitigation details for later agreement raised a novel question with wider application to appropriate assessments.
The judge weighed the potential public benefit of an appeal against delay to the proposed commercial development and concluded that the public interest favoured certification. The judgment’s Schedule 2 described the revised wording as a draft subject to final approval; the judge said the parties could make further submissions on that wording before the points were finalised.
The court refused leave for Environmental Action Alliance Ireland, an unincorporated group represented in the application by David Malone. Its proposed questions concerned the environmental impact statement, the Board’s environmental impact assessment and the court’s approach to EU law. The judge said those questions did not raise an uncertain point of law warranting certification. The court also refused the first applicant’s broader request to certify a question about the standard of judicial review. No Court of Appeal ruling on the certified questions is reported in this judgment.