The Court of Appeal has dismissed an appeal by environmental group People over Wind against An Bord Pleanála’s permission for Coillte’s proposed 18-turbine wind farm at Cullenagh, Co. Laois. The court rejected the three certified points of law concerning protection of the River Nore Special Area of Conservation (SAC) and said there was no need to refer questions to the Court of Justice of the European Union.
Laois County Council had refused planning permission, but the Board allowed Coillte’s appeal in June 2014. The High Court later dismissed People over Wind’s judicial review challenge. It certified three points of law for appeal, all concerning the Habitats Directive and the appropriate assessment of effects on protected sites.
The River Nore SAC lies about 12 to 17 kilometres from the development site. The court said 68 per cent of the site drains towards the Nore freshwater pearl mussel population, a critically endangered species vulnerable to sedimentation. The central concern was whether construction runoff could carry sediment into watercourses and further threaten the mussel.
On restoration, the court held that the Board had to ensure the project would not adversely affect the SAC’s integrity, but was not required to make the developer contribute positively to restoring the species. The court noted that restoration depends on specialist measures involving water quality, riverbed conditions, flow and host fish.
On scientific material, the court said the Board must have access to the best scientific knowledge reasonably available. It concluded that the detailed environmental and Natura impact materials identified the sediment risk and that the Board had addressed it. The judgment also considered a later affidavit from Dr Evelyn Moorkens, an environmental scientist who criticised the assessment and proposed sediment limit. The court said the affidavit did not undermine the validity of the Board’s decision.
The permission required the environmental mitigation measures in the submitted materials to be implemented. A further condition required a construction management plan, including controls to prevent silt or pollutants entering watercourses, with monitoring proposals to be agreed with the planning authority before construction. The court said the condition set the governing principle and left the detailed engineering arrangements to be settled with the authority. If the required controls could not be achieved in practice, the development could not proceed.
The court answered all three certified questions against People over Wind, declined to make an EU law reference, and dismissed the appeal. Its ruling addressed the lawfulness of the permission and its conditions; it did not determine whether construction would in practice meet those controls.