The High Court has quashed An Bord Pleanála’s permission for a proposed biogas facility at Ballyduff, Tullamore, finding that the board materially misapplied the Offaly County Development Plan and failed to give adequate reasons on the site’s employment-zone designation.
In a judgment delivered on 22 December 2023, Ms Justice Emily Farrell found that the proposed development would materially contravene the plan’s objectives for the Ballyduff Strategic Employment Zone. The zone was intended to facilitate strategic large-scale employment. The inspector’s report estimated 50 to 70 construction jobs over about 12 months, but described the long-term employment benefit from four to five operational jobs as “slight”. The court found that this level of permanent employment was not consistent with the zone’s objectives.
The court also found that the board’s decision and the inspector’s report did not explain why permission was compatible with the plan despite the site’s designation and the limited permanent employment expected. The board had relied on the inspector’s recommendation and did not identify any disagreement with the report. The judge said the presumption that the board had considered the designation was rebutted because it had not been addressed transparently. She also held that the inspector had relied on the absence of significant environmental effects as a reason the development was compatible with the zoning, even though that was not a relevant consideration for that purpose.
The proposed facility would process agricultural by-products, including silage, manure and chicken litter, through anaerobic digestion to produce renewable energy and organic fertiliser. It was planned for a 2.14-hectare site about 150 metres from Grafton Group’s Tullamore builders’ merchant, trading as Tullamore Hardware/Chadwicks. The applicant had challenged the planning permission on several grounds, including the zoning assessment, the environmental impact assessment and the board’s failure to publish the environmental impact assessment report (EIAR).
The court rejected the applicant’s challenges concerning bats, hedgerow removal and cumulative environmental effects. It found no expert evidence establishing that a bat survey was required or that the board’s assessment was irrational. It also concluded that the board had considered cumulative effects, including in combination with other development in the area, and had not been shown to have made a legal or material factual error on that issue.
The board had not published the EIAR on its website, although Offaly County Council had made it available. The court held that Article 114 of the Planning and Development Regulations 2001 required the board to publish an EIAR received in connection with an appeal, even if the planning authority had already published it. The applicant did not seek to quash the permission on this ground, and the court noted that no party claimed to have been prejudiced by the omission.
The court quashed the board’s order of 17 February 2022 granting permission, and declared that Article 114’s publication obligation was not limited to appeals where the board had required the EIAR under Article 109.