The High Court has refused Klaus Balz and Hanna Heubach a certificate to appeal its dismissal of their challenge to planning permission for an 11-turbine wind farm at Cleanrath, Inchigeelagh, County Cork.
Mr Justice Robert Haughton delivered the ruling on 1 October 2018. The applicants sought a certificate under section 50A(7) of the Planning and Development Act 2000, which permits an appeal only where the decision involves a point of law of exceptional public importance and an appeal is desirable in the public interest.
Their first two proposed questions concerned whether An Bord Pleanála had to examine scientific submissions criticising the 2006 Wind Energy Development Guidelines and the noise standard ETSU-R-97 when assessing the project’s environmental effects. The applicants argued that the Board should have considered this evidence when deciding whether to apply the guidelines.
The judge said the questions overlapped and treated the second as a partial restatement of the first. He considered that the applicants’ argument was, in substance, about whether the Board had power to set aside the statutory guidelines, rather than whether it had complied with its environmental impact assessment obligations. His earlier judgment had held that the Board could not decide not to apply the guidelines, as doing so would be beyond its powers. The applicants’ proposed questions did not challenge that reasoning, he said.
He was not satisfied that the law was uncertain or that the earlier ruling conflicted with the European Court of Justice’s decision in Commission v Ireland. Nor had evidence been presented that the challenge to the guidelines arose frequently in other cases or that an appeal would resolve other cases.
The third proposed question concerned how the Board’s duties under Articles 3 and 8 of the Environmental Impact Assessment Directive relate to one another. The judge said those duties are distinct, but found no basis to conclude that they require separate planning processes. He considered that the Board’s decision and the inspector’s report showed that an environmental impact assessment had been completed and that the decision did not suggest the Board had confused the two duties.
The court refused the certificate because none of the proposed questions raised a point of law of exceptional public importance. The ruling concerned permission to appeal; it did not revisit the earlier dismissal of the judicial review.