The High Court found that An Bord Pleanála’s decision to grant permission for a proposed 67.8-hectare solar farm at Fiddane, Ballyhea, County Cork, was invalid because the Board relied on protective measures during its screening for an appropriate assessment. The court said those measures could not be considered at that stage under the Habitats Directive.
In a judgment delivered on 31 January 2020, Mr Justice Denis McDonald said the site was about one kilometre from the Blackwater River (Cork/Waterford) SAC. The Board inspector had identified a hydrological connection between the site and the protected area, and potential for construction runoff, including silt and pollutants, to reach it.
The developer’s preliminary construction environmental management plan included measures such as silt fences and straw bales to prevent polluted runoff reaching nearby streams. The judge found those measures were intended to protect watercourses draining into the River Blackwater and could not lawfully be taken into account when deciding at screening whether a full appropriate assessment was needed. The Board’s error went to its jurisdiction, the judgment said, making its planning decision invalid. The court indicated that the applicant was entitled to an order quashing the decision, but said it would hear further submissions on the precise order and whether the matter should be remitted to the Board for fresh consideration.
The applicant also succeeded on a separate procedural ground. The appeal against the county council’s permission was lodged with the Board on 22 February 2018 but was omitted from the weekly list published on 28 February. It appeared in a revised list on 8 March. The judge held that the regulation requiring timely publication was mandatory and that the delay substantially curtailed the public’s four-week opportunity to make submissions, leaving only about two weeks after the revised list appeared.
The court rejected the applicant’s argument that the solar farm required assessment under the Environmental Impact Assessment Directive. It found that electricity generation without the associated production of heat and steam did not fall within the relevant category of industrial installations. It also found no sufficient basis for treating the project as an industrial estate development.
The applicant’s challenge to the State respondents over alleged failures to transpose EU directives was dismissed because it had not been properly set out in the statement of grounds. The judge also rejected a separate claim concerning whether Cooliney Bridge had been assessed. Costs, the final form of relief and possible remittal were left for later submissions.