The Court of Appeal has affirmed the High Court’s decision to dismiss challenges concerning historic forestry consents linked to the proposed Carrownagowan windfarm in County Clare. The appeal did not determine the separate challenge to the Board’s grant of planning permission for the windfarm.
The appellants were Carrownagowan Concern Group, local residents Ute Rumberger and Nicola Henley. They had sought to challenge unidentified forestry consents dating from 1 June 1988 onwards, arguing that some may have lacked environmental assessments required by EU law and that the Board should have considered the consequences when assessing the windfarm application.
The High Court discharged leave for the out-of-time challenges to forestry consents, refused an extension of time and struck out other claims as bound to fail. It also refused discovery of forestry records. The appellants appealed four grounds pursued at the hearing; two other grounds were abandoned.
The Court of Appeal held that the appellants could not raise for the first time in these proceedings the claim that the Board had an autonomous duty to investigate whether historic forestry consents had been properly assessed. They had not identified a particular consent or produced evidence of a specific breach, and had not asked the Board to address the issue during the planning process. The court also said the windfarm was a separate development from the forestry projects and that the Board was not the authority responsible for forestry consents.
The court upheld the conclusion that the challenges to historic consents were out of time and that there was no basis to extend time. It rejected the arguments that the High Court had set aside EU law because compliance would be difficult, or that commercial interests had been treated as paramount in considering access to justice.
It also upheld the refusal of discovery, finding the requested records were ancillary to claims that had been struck out. The court refused the appellants’ request to refer questions to the Court of Justice of the European Union, concluding that the proposed questions did not arise from the pleaded issues or need resolution to decide the appeal.
The Court of Appeal affirmed the High Court decision. Its judgment concerns the appealed rulings about historic forestry consents and related procedural requests; it does not decide the merits of the underlying windfarm planning permission challenge.