The High Court has dismissed most of a judicial review challenge to An Bord Pleanála’s preliminary decision that a proposed windfarm in West Waterford and East Cork qualified as strategic infrastructure development (SID). A separate part of the case against the State remains adjourned.
The decision under challenge was made on 15 May 2020 and notified on 28 May. It classified the proposed development as SID, meaning a planning application would be made directly to the board rather than to a local council. The project had been reduced from 25 turbines to 17: 11 in Waterford and six in Cork.
The applicant argued that the project was not a single “installation” because it occupied two locations, and disputed that its total output exceeded the statutory threshold of 50 megawatts. The court heard that the two clusters were 1.66 kilometres apart at their closest, connected by a cable about 2.12 kilometres long, and that power would be routed to one substation in Waterford for export to the national grid.
Justice Humphreys found the cable provided a meaningful physical connection, making the project a single system and installation. He said shared management or personnel alone would not join separate developments into one installation; nor would a connection solely through the national grid between separate substations.
On the output test, the judge accepted evidence from the developer’s engineer that the industry understood “total output” as rated power output, rather than actual energy generation over time. The 17 turbines were specified to have a rated output of at least three megawatts each, giving a total of at least 51 megawatts. The judge said the applicant had not challenged that evidence through cross-examination or otherwise displaced it.
The court also held that the information supplied was adequate for the board’s preliminary jurisdictional assessment. Full turbine specifications were not required at that stage, provided the material showed the threshold would be met. If a later planning application did not satisfy the jurisdictional criteria, the board would have to reject it, the judgment said.
The judge rejected claims that the board had failed to apply the test properly or give adequate reasons. He said the board had a clear basis in the developer’s material and was not required to anticipate and expressly answer an objection that had not been raised during the preliminary process.
The proceedings challenged a preliminary decision, and the judge said such a challenge was in principle premature because the substantive planning decision had not yet been made. He nevertheless determined the challenge after the notice party asked the court to do so. On 29 November 2021, claims against the State concerning public participation and statutory validity had been adjourned. The final order dismissed the proceedings except insofar as they depended on the case against the State, which remains adjourned generally with liberty to re-enter.