Judgment: 2019-12-20 · Court archive

High Court says wind farm permission must be quashed over hen harrier assessment

The court found gaps in the assessment of impacts from the 12 approved turbines, but postponed deciding whether to remit the planning appeal for a further determination.

The High Court, Commercial · [2019] IEHC 888

Who, what, where, when and why

Who
  • Sliabh Luachra Against Ballydesmond Windfarm Committee (Applicant)
  • An Bord Pleanála (Respondent)
  • Kerry County Council
  • Denis McDonald (Judge)
What

The court found gaps in the assessment of impacts from the 12 approved turbines, but postponed deciding whether to remit the planning appeal for a further determination.

Where

Places mentioned in the report

  • Gneeveguilla, County Kerry
  • Ballydesmond, County Cork
  • Barna Bog
  • Blackwater River
  • Sliabh Luachra
When

Judgment:

Why

Reasons reported in the judgment

The High Court ruled that An Bord Pleanála’s permission for a 12-turbine wind farm near Gneeveguilla, County Kerry, and Ballydesmond, County Cork, must be quashed because the assessment did not explain how the turbines and associated works, apart from two excluded turbines, would avoid harm to hen harriers.

The High Court ruled that An Bord Pleanála’s permission for a 12-turbine wind farm near Gneeveguilla, County Kerry, and Ballydesmond, County Cork, must be quashed because the assessment did not explain how the turbines and associated works, apart from two excluded turbines, would avoid harm to hen harriers.

Justice Denis McDonald delivered judgment on 20 December 2019 in a judicial review brought by Sliabh Luachra Against Ballydesmond Windfarm Committee. The court found against the committee on its other claims. It postponed making any order on whether the planning matter should be returned to the Board for further determination, pending submissions from the parties.

The permission, granted in November 2018, followed the developer’s appeal against Kerry County Council’s refusal of its application. The Board reduced the proposed scheme from 14 turbines to 12, excluding T8 and T9 after concerns about effects on hen harriers near Barna Bog and the Stacks Special Protection Area (SPA).

The committee argued that the Board had not lawfully carried out an appropriate assessment under the Habitats Directive, among other grounds. The judge held that the inspector had identified potential impacts across the site, including disturbance, habitat loss and collision risk. But the inspector’s conclusions focused on T8 and T9 and the Barna Bog area. The report did not give complete, precise and definitive findings explaining how the remaining turbines and infrastructure would address the identified risks, including effects on foraging habitat and collision risk. The court concluded that the required assessment standard had not been met and that the permission had to be quashed on that ground.

The court separately rejected the challenge concerning the freshwater pearl mussel in the Blackwater River SAC. It considered the surface-water management plan, an expert report and conditions requiring specified mitigation measures. Read together, the judge found, those materials supported the inspector’s conclusion that the development would not adversely affect the mussel. The court also rejected the claims about post-consent conditions and whether the Board had adopted the inspector’s environmental impact assessment. It found that the assessment was insufficient regarding hen harrier effects from the remaining development.

The late affidavits of two experts filed for the committee were excluded because their delivery shortly before trial caused logistical prejudice and was not satisfactorily explained. The court said it could decide the pleaded case without them.

Read the original court judgment

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