The Court of Appeal has dismissed two appeals by the North Westmeath Turbine Action Group over its challenge to planning permission for a windfarm, while finding that the High Court had erred in refusing an amendment to its case against the State.
The judgment, delivered by Mr Justice Maurice Collins on 1 June 2022, concerned permission granted by An Bord Pleanála in March 2019 for up to 13 turbines, each with a tip height of up to 175 metres, and associated works on 440 hectares of peatland in Co Westmeath. The proposed grid connection to Mullingar was considered in the environmental assessment, but was not part of the planning permission challenged in these proceedings.
The group’s judicial review alleged, among other things, that a condition requiring the developer to implement mitigation measures and monitoring commitments was beyond the planning board’s powers where measures related to land outside the developer’s control. It also argued that Ireland had failed to properly transpose relevant EU environmental directives. Those were allegations, not findings in this appeal.
The group had named Ireland and the Attorney General as respondents but had not initially sought relief against them. The High Court struck out the proceedings against the State as bound to fail and refused the group’s later request to add declarations alleging failures to transpose the directives. The group appealed both orders.
Mr Justice Collins held that the High Court should have considered the amendment application before the State’s strike-out application. He also disagreed with the High Court’s assessment that the proposed declarations amounted to a new case: they relied on grounds already pleaded, and the State had been on notice of those allegations. He found that the High Court had materially erred in refusing the amendment.
However, the windfarm challenge had since been heard by the High Court against An Bord Pleanála and the developer, and its decision was still awaited. The Court of Appeal concluded that allowing the amendment at this stage would effectively permit a separate claim for declarations within proceedings focused on the planning decision. The result of the pending planning case could affect whether such a claim had any practical purpose. The group could bring appropriate proceedings against the State after that case was decided, if it considered there was a proper basis to do so.
The Court therefore refused the amendment appeal. It dismissed the strike-out appeal as moot because the planning challenge had already been heard without the State, and an order setting aside the strike-out would have no practical effect. It did not decide the parties’ arguments about whether the original proceedings could have continued against the State without formally claiming relief.
The judge’s provisional view was that there should be no order for costs on either appeal. Any party wishing to argue for a different costs order was directed to notify the court office within 14 days, after which a short hearing would be arranged.