The High Court rejected a judicial review challenge by Edel Grace and Peter Sweetman to planning permission for a 16-turbine wind farm at Bunkimalta, Co. Tipperary. The court held that the applicants had not shown sufficient interest to bring the case and concluded that the planning board had carried out an appropriate assessment. The judgment does not quash the permission.
An Bord Pleanála granted permission to ESB Wind Development Limited and Coillte on 22 July 2014, on appeal from North Tipperary County Council, which had refused the application. The project is within the Slieve Felim to Silvermines Special Protection Area, designated for the conservation of the hen harrier.
The applicants argued that the board wrongly treated replacement habitat as mitigation under Article 6(3) of the Habitats Directive, rather than compensation under Article 6(4). They also challenged the environmental impact assessment, arguing that it failed to assess the climate effects of clearing 41.7 hectares of forest. Neither applicant had participated in the planning process.
The judgment records that the developer’s Species and Habitat Management Plan proposed 164.3 hectares of replacement habitat for a potential loss of 162.7 hectares around turbine locations and exclusion zones. The board’s permission was subject to mitigation measures, including the plan. The court accepted that, given the site’s changing forestry and the SPA’s conservation objective of protecting the hen harrier, the measures around turbine 1 could be treated as mitigation.
On climate impacts, the court noted that the environmental impact statement addressed the loss of carbon sequestration from clear-felling and the expected replanting of an equivalent area. It held that the board had clear evidence before it and was entitled to conclude that the development would not have unacceptable environmental effects.
The court’s decision also rested on the applicants’ standing. It found that they had not explained why they failed to participate in the planning process, shown that their judicial review issues could not have been raised earlier, or demonstrated impairment of rights personal to them. The court said it would be manifestly unjust to allow them to pursue issues raised by the Department of Arts, Heritage and the Gaeltacht, which had not taken part in the case.
The judgment is dated 1 October 2015. It rejects the challenge; it does not grant the applicants’ requested relief to quash the planning permission.